Law: its origin, growth and function : being a course of lectures prepared for delivery before the Law School of Harvard university

The Executors of
James Coolidge Carter

\^J

and :tion

James Coolidge Carter

V

Law: Its Origin
Growth and Function

Being a Course of Lectures Prepared for

Delivery before the Law School

of Harvard University

By
James Coolidge Carter, LL.D.

of the New York Bar

G. P. Putnam's Sons

New York and London

Cbe •Rnfcfcerbocfeer prees

1907

4

1

COPYRIGHT, 1907

BY
G. P. PUTNAM'S SONS

Ube Knickerbocker pre0s,

PREFATORY NOTE

THE origin and nature of law, both written and
unwritten; its growth and development; its function
in the social order; its powerful influence as an
effective force in the progress and civilisation of
mankind; the importance of distinguishing between
the nature of written and unwritten law and, ascer-
taining the proper and legitimate province of each,
were subjects which possessed for Mr. Carter an
absorbing interest and to which he devoted much
attention, particularly during the last few years of
his life, when his retirement from active practice
afforded him more opportunity for study and
reflection.

The general field of inquiry was not new to him,
for at a much earlier period, when still in the full
tide of professional activity and burdened by the
exacting demands of a large and important practice
at the Bar, he had taken the principal part in op-
posing the adoption by the State of New York of the
well known Civil Code, of which the late David Dud-
ley Field was the author; and this task and the
inquiries which it led him to make, were pursued by
him with the keenest interest.

The arguments which he then framed and ad-
dressed to successive legislatures and governors,
led to the final rejection of the proposed Code. His

iv Prefatory Note

views were published in a series of pamphlets, the
first of which appeared in 1883 under the title The
Proposed Codification of our Common Law. Five
years later, he delivered an address before the Vir-
ginia State Bar Association, which was afterwards
published under the title of The Provinces of the
Written and Unwritten Law, and later, in 1890,
an address before the American Bar Association
upon The Ideal and the Actual in the Law
embodied further views and reflections upon the
same general topics. It was to the study devoted
to these subjects in the somewhat brief periods of
leisure permitted by the demands of his active
professional work that Mr. Carter himself attributed
the deep and absorbing interest which they possessed
for him.

After his retirement from active practice, he
determined to devote a portion of his leisure to
writing a somewhat more important and complete
expression of his views on these topics than had been
contained in his former pamphlets and addresses
but at the suggestion of President Eliot, of Harvard
University, he substituted for this proposed work a
series of lectures to be delivered before the Law
School of that University. I find among his papers
a brief memorandum in his handwriting, evidently
written before this change of purpose and intended
as a suggestion for a preface to the work which he
at first designed to write. It is endorsed "By Way
of a Possible Preface, " and is as follows:

It happened to me many years ago to be appointed by the
Association of the Bar of the City of New York upon a Com-

Prefatory Note v

mittee charged with the duty of opposing a bill which had
been introduced into the Legislature of that State, entitled
"An Act to Establish a Civil Code."

This proposed Code purported to be the work of a Legis-
lative Commission which had been created by an Act of the
same Legislature, adopted many years before, and at the head
of which was the late David Dudley Field; but it was in fact,
as he often declared, entirely his own work. This eminent
lawyer was a man of great intellectual audacity, the worthy
disciple in that particular of Jeremy Bentham. He would
not tolerate the suggestion that there was any unsurmount-
able difficulty in reducing into statutory form the entire body
of the law which governs the private transactions of men.
He insisted that the whole of it could be embraced in a volume
of very moderate size and that its adoption would substan-
tially supersede the necessity of consulting that prodigious
record of judicial precedent which fills so many thousand vol-
umes and has been hitherto deemed an essential part of the
furniture of every complete law library. Moved by the
high incitements of conferring upon society a benefit so
prodigious, and, as we may suppose, of achieving for his own
name a renown like that bestowed upon the great law-givers
of mankind, he threw himself into the enterprise of procuring
the enactment of his proposed code with the greatest energy
and prosecuted it for years with the utmost persistency. This
made the task of opposition extremely laborious and the chief
burden happened to fall upon myself.

I was thus led into inquiries concerning the distinctions
between written and unwritten law and was unable to find
that these distinctions had ever been to any considerable
extent pointed out.

I was, however, led to entertain much doubt concerning
the correctness of the conceptions most widely accepted of
the nature, scope, and authority, not only of the written, but
of the unwritten law. and came to think that, notwithstanding
the number of treatises upon the subject, the original sources
and nature of what may be called jurisprudence had never

vi Prefatory Note

been sufficiently explored; in particular the definition of law
as a command, laid down by Austin and carried out into all
its logical consequences by him, resting as it does, so far as
the unwritten law is concerned, upon a manifest fiction, and
confounding, as it also does, the separate provinces of the
written and unwritten law, seemed to me to be a fundamental
error.

These defects, or errors, as they seem to me to be, in the
current theories of our jurisprudence, I impute to an under-
estimate among the members of our profession of the im-
portance of theoretical inquiries. The most distinguished
of our lawyers and judges are prone to regard with a species
of disdain any resort in forensic argument to elementary
principles, and comparatively little attention is given in our
schools of law to the scientific study of the foundations of our
legal institutions. ,;,_

This is very much to be regretted. To eulogise the law
as one of the highest of human sciences and yet neglect to
inquire what kind of a science it is, whether it rests upon a
priori conceptions or is the fruit of an induction from the
facts of human experience; whether it is the conscious com-
mand of a supreme authority or an unconscious growth in the
life of human society, is an inconsistency of which professed
students should not be guilty.

The interest aroused in me, in the manner above indicated,
in the theoretic foundations of our law, and my sense of the
importance of such studies, have moved me to publish some
of the conclusions which seem to me well founded and the
grounds upon which they may be supported. I am not so
presumptuous as to think them in any way final or anything
more than a contribution to a discussion, which, if suffi-
ciently stimulated, must be fruitful in most important and
serviceable truth.

Mr. Carter's sense of the importance of the in-
quiries which he thus describes, and the strong
affection which he always entertained for his Alma

Prefatory Note vii

Mater and which led him to adopt for the expression
of his ripened and mature views the form of lectures
for delivery before its Law School, are touchingly
shown by a provision of his will whereby he gave
a large sum to the President and Fellows of Harvard
College "which," he said, "I now wish may be ap-
plied to the establishment and maintenance in the
Law School of the University of a professorship of
General Jurisprudence for the special cultivation
and teaching of the distinctions between the pro-
vinces of the written and unwritten law; but I do
not intend to control the discretion of the donees
in respect to the application of this fund. I mention
my present preference." This was in addition to
another large gift for the general purposes of the
University.

It was Mr. Carter's intention to deliver the lectures
in the spring of 1905, and the rough draft of the
manuscript was completed only a few days before he
was stricken with the brief illness which resulted in
his death on February 14, 1905. When he realised
that he could never deliver the lectures, he ex-
pressed a wish that they be published by his
Executors.

The manuscript had never been finally revised
by him; but it has been thought best to print this
volume from it just as it left his hand, save the
making of a few verbal corrections.

L. C. L.

NEW YORK, June, 1907.

LAW, ITS ORIGIN, GROWTH
AND FUNCTION

LECTURE I

A COMPLETE study of the law would embrace
three successive efforts. The first would be to
acquire a knowledge of those rules which make up
the law, as mere isolated rules; and this might be
sufficient for a considerable degree of skill and pro-
ficiency in practice. The next would be to compre-
hend those rules as parts of a classified and orderly
system exhibiting the law as a science; and who-
ever aspires to be a thoroughly accomplished lawyer
must take this step. The third and final effort j
would be to explore the realms of science which'
lie beyond the immediate boundaries of the law, ;
and ascertain its origin, its essential nature, the
method of its development, the function it fills in
human society, and the place it occupies in the gen-
eral system of human knowledge; in other words,
to learn what is termed the Philosophy of the Law.
The means for prosecuting the first two of these
efforts have been, in a reasonable measure, already
supplied. The decisions of a multitude of tribunals

*

2 Law, Its Origin

sitting during successive ages, and diligently re-
corded, furnish abundant material from which to
gain a knowledge of what the law at present is, and,
besides these, we have numerous treatises, many of
them thorough and admirable, together with codes
both of ancient and modern states, all aiming to
reduce the law into a scientific form.

In the third and last stage of legal study, how-
ever, comparatively little progress has been made.
There are several reasons for this. In the first place,
there is, in the economic sense, but little demand
for this sort of knowledge. Courts are always eager
to listen to intelligent discussion concerning particu-
lar rules, or the general heads in the law to which
such rules should be referred; but their concern is
mainly with practical affairs, and they are inclined
to be impatient of discussions which have but a
remote pertinency, and to them all mere philosophy
is apt to seem remote. Lawyers, even the most
accomplished, feel little inclination towards studies
which seem to afford but a small measure of practical
utility, and most efforts in the field of Legal Philo-
sophy are characterised with a polite sneer as
being academic. Moreover this branch of knowledge
being part of the field, not strictly of Law, but of
Sociology, has necessarily been kept in abeyance by
the circumstance that Sociology itself is but a recent
study. Add to this the intrinsic difficulty of the
subject, and we need not wonder at the little pro-
gress made in its development.

The criticism that such studies are academic is
true, but it should by no means discredit them. It

Growth and Function 3

is their highest recommendation; for it means that
they are such as are usually pursued in universities,
and it is in such places, pre-eminently, that the
highest and most useful knowledge is taught. All
university teaching is, or should be, scientific and
philosophical; and never rests satisfied as long as a
further step may be taken or a larger generalisation
reached.

But if proof be needed of the immediate practical
utility of such knowledge it may be found in abund-
ance in the present condition of legislation. I speak
of this country, but without meaning to imply that it
is worse here than elsewhere. There are a vast number
of laws on the statute-books of the several States
which are never enforced, and generally for the
reason that they are unacceptable to the people.
There are great numbers of others the enforcement
of which, or attempts to enforce which, are produc-
tive of bribery, perjury, subornation of perjury,
animosity and hate among citizens, useless expendi-
ture, and many other public evils. All these are
fruits of the common notion, to correct which but
little effort is anywhere made, that a legislative
enactment is necessarily a law, and will certainly
bring about, or help to bring about, the good in-
tended by it, whereas such an enactment, when
never enforced, does not deserve the name of law
at all, and when the attempted enforcement of it
is productive of the mischiefs above-mentioned, it
is not so much law as it is tyranny. Among the
evils which oppress society, there are few greater than
that caused by legislative expedients undertaken

V

4 Law, Its Origin

in ignorance of what the true nature and func-
tion of law are, and the effective remedy — at least
there is no other — lies in an effort to correct this
ignorance by knowledge.

This neglect of the problems underlying our legal
systems has left important points in our judicial
literature in much confusion, and this is very mani-
fest in the multiform definitions which have been
given of Law. It might be thought that the oldest
and most necessary function of human society, and
one which from the dawn of speculation has
engaged the attention of the most superior and dis-
ciplined minds, would have received a final interpre-
tation commanding general assent; but the case is
quite otherwise. The various definitions exhibit the
greatest diversity, both in expression and in sub-
stance. They are generally vague and uninstructive,
sometimes conflicting and irreconcilable, and scarcely
any will endure a close scrutiny.

I may illustrate this diversity by instances, most
of which I gather from Prof. Holland's recent work
on The Elements of Jurisprudence. Cicero, who, with
other Roman jurists, was wont to regard what was
termed the Law of Nature as the foundation of all
law, in one place thus defines it1: "Lex est recta
ratio imperandi atque prohibendi" ; in another thus
"Lex nihil aliud nisi recta et a numine deorum tracta
ratio, jubens honesta, prohibens contraria." 2 Such
definitions can hardly be said to define anything.
Assigning to the law a divine source and authority,
and identifying it with " right reason," is but a con-

*DeLeg.,L, 15. * Phil, xi., 12.

Growth and Function 5

•
fession of inability to define or explain it. It is but

saying that law is so far the product of our highest
reason that no human origin can be assigned ir it,
and therefore that its source and authority must be
divine. And to say that the law is what commands
the honest and just to be done is but moving in a
circle, for if we were to inquire what is honest and
just the only answer would be what the law com-
mands. A definition by Hooker is very concisely
expressed, but marked by the same vagueness:
"That which reason in such sort defines to be good
that it must be done."1 What is this reason from
which law thus proceeds, and where is it to be
found, and how does it act in determining what is
good ? Men may have different conceptions of reason,
and be led by them to very different conclusions
concerning law. The German philosopher Kant
defines law as "the sum total of the conditions under
which the personal wishes of one man can be recon-
ciled with the personal wishes of another man, in
accordance with a general law of freedom."2 But
while this definition exhibits a profound insight into
the purpose, or function, of law, it is otherwise vague
and indefinite. What is the nature of the "con-
ditions' ' here intended ? Are they found in the nature
of men and things, or imposed by some external
human authority, and if the latter, by what author-
ity? Savigny, the most accomplished philosophical
jurist of his time, at once profound and practical, de-
scribes the law as "The rule whereby the invisible

» Eccl, Pol., i.e. 3,c. 8.

2 Rechtslehre, Werke, vii., p. 27.

6 Law, Its Origin

border line is fixed within which the being and the
activity of each individual obtains a secure and
free space."1 This language, however vague and
obscure, describes law, or rather its function quite
accurately, but it does not inform us of the origin
of the rule, or the nature of its authority, matters
quite necessary to a complete description.

These instances are not given by Prof. Holland as
attempted definitions of any law actually admin-
istered; but of that general body of rules to which
it is supposed that human conduct ought to conform,
even though not enforced by the direct action of the
State, — rules derived from what is called the Law of
Nature, or from the general code of morality. He
is a follower of the celebrated John Austin, and
would restrict the name of Law to those rules which
a fully organised State recognises and enforces, and
which he, adopting the language of Mr. Austin, dis-
tinguishes by the term Positive Law. He cites many
instances of what, in his view, are attempted defini-
tions of this law, besides giving his own. Among
them is that of Demosthenes: "This is Law, to
which all men should yield obedience for many
reasons, and especially because every law is a dis-
covery and gift of God, and at the same time a
decision of wise men, and a righting of transgressions,
both voluntary and involuntary, and the common
covenant of a State, in accordance with which it
beseems all men in the State to lead their lives."
This definition, however, seems limited to those
rules which are formulated by learned jurists from

1 Sy sterna des Reckts, i., p. 332.

Growth and Function 7

the precepts of morality, and scarcely embrace the
edicts of a tyrant, or the arbitrary enactments of
a legislative body however rigorously they may be
enforced. Another is that of Xenophon : ' ' Whatsoever
the ruling part of the State, after deliberating as to
what ought to be done, shall enact, is called a law."
This defines well enough written or statutory law,
but no other. Another is that of Hobbes, the cham-
pion of arbitrary power, which also defines nothing but
statutory law: "The speech of him who by right
commands something to be done or omitted."
Another is that of Bentham, who believed that legis-
lation should embrace the whole field of law: "A
portion of discourse by which expression is given
to an extensively applying and permanently en-
during act or state of the will, of a person or persons
in relation to others, in relation to whom he is, or
they are, in a state of superiority." It requires no
small amount of intellectual effort to understand
what this means, but it is phrased with studied pre-
cision to express what the author thought law
ought to be. John Austin, in his well-known work
on The Province of Jurisprudence Determined, limits
that province to what he designates as " Positive
Law," which he defines thus: "Every positive law,
or every law simply and strictly so called, is set by
a sovereign person, or a sovereign body of persons,
to a member or members of the independent political
society wherein that person or body is sovereign or
supreme,"1 and he denies that any other so-called
laws fall within the scope of jurisprudence. He,

i John Austin, lecture vi, vol. i., p. 116.

8 Law, Its Origin

like Bentham, whose disciple he was, thus makes
the most important element of law, its authority,
to proceed from the sovereign power, and pro-
nounces the most profound judgment of an Eldon
or a Marshall and the tyrannical decree of the most
unscrupulous despot as equally entitled to the
august name of law. And yet the theory of Austin
has received, both in England and America, a wider
acceptance and adoption among juridical writers
than any other. There is in the other definitions I
have referred to a basis of general truth, however
insufficient they may be, but that of Austin seems
to me to be radically and mischievously erroneous.
This will clearly appear if the views I shall hereafter
endeavour to maintain be at all well founded. The
definition of a German jurist, Dernberg, is very
concise. It is: "That ordering of the relations of
life which is upheld by the general will." We would
scarcely think that this writer was speaking of the
same thing which Bentham and Austin sought to
define. Austin, however, could cite Blackstone in
his favour, whose definition is: "A rule of civil con-
duct prescribed by the supreme power in a State
commanding what is right and prohibiting what is
wrong" ; but this, besides being open to much the
same criticism as the definitions of Bentham and
Austin, is subject to another, namely, that we are
not told where we are to find the "right" and the
"wrong" which the law enjoins or prohibits, except
in the injunction or prohibition itself. Prof.
Holland's own definition is, I think, while far from
being perfect, one of the best: "A law, in the proper

Growth and Function 9

sense of the term, is a general rule of human action,
taking cognisance only of external acts, enforced by
a determinate authority, which authority is human,
and, among human authorities, is that which is para-
mount in a political society."

Sir Frederick Pollock, to whose disciplined mind
and wide learning we might look with confidence for
a satisfying definition, thinks one impossible at
present, and says: "No tolerably prepared candidate
in an English or American law school will hesitate
to define an estate in fee simple; on the other hand,
the greater a lawyer's opportunities of knowledge
have been, and the more time he has given to the
study of legal principles, the greater will be his
hesitation in face of the apparently simple question,
What is Law?"

In this diversity of view two opposing tendencies
are discernible. One of them may be described
generally as an ideal tendency seeking to enthrone
over human affairs a rule of absolute Right.

The ancient jurists, the administrators and stu-
dents of the law, recognised the sense of justice or
right felt by all races and classes of men, and per-
ceived that there were rules of human conduct con-
stituting a rational system the enforcement of
which satisfied this universal sentiment. Whence
the sentiment came, or the rational precepts which
accorded with it, they did not diligently inquire, but
they perceived that a like order pervaded all the
phenomena of the moral and physical world, that
the heavenly bodies moved and the seasons suc-
ceeded each other in accordance with some un-

io Law, Its Origin

yielding law, and that, in general, virtue was rewarded
and vice punished, in accordance with some law
equally imperative. They could not help believing
that the universe, moral as well as material, was
under the guidance of some All-powerful Mind, the
Creator and Ruler of all, whom, expressing their
ignorance rather than their knowledge they named
indifferently Jove, God, or Nature. Their conclusion
was that there was a real and true Law towards
which all human law approached, and good men
everywhere aspired, capable, in part at least, of be-
ing apprehended by our reason, which was a part
of universal Nature, and an emanation of the Divine
Mind, and to this they gave the name of the Law
of Nature.

This conception fell in with the philosophical tenets
of Stoicism, which was the school in which the Roman
jurists were chiefly trained. It furnished a founda-
tion for the jus gentium, a body of law which grew
out of the necessities of justice in dealing with the
relations between citizens of Rome and the people
of her conquered provinces; and it thus found a
place in the Roman Jurisprudence, and has been
carried with it into the judicial literature of the
modern nations of continental Europe which have
adopted that system as the basis of their law. It
was a favourite theme with Cicero in his legal writ-
ings, and he kindles into eloquence whenever he
touches upon it. His nobly phrased panegyrics have
often been quoted.

Nor is this law of nature a stranger to the jurid-
ical writers of England. I might refer to many

Growth and Function n

who recognise it, although all may not understand
it alike. I content myself with a citation from
Blackstone. He says: "This law of nature being
co-eval with mankind, and dictated by God himself,
is, of course, superior in obligation to any other.
It is binding over all the globe in all countries, and
at all times; no human laws are of any validity if
contrary to this; and such of them as are valid
derive all their force, and all their authority, medi-
ately or immediately, from this original."1

This lofty conception of law can scarcely be
regarded as scientific. If there were no other ob-
jection to it, it would be enough that we know of no
certain means whereby we can pronounce what the
law of nature is. Blackstone, indeed, says that it
may be reduced to one "paternal precept, 'that man
should pursue his own true and substantial happi-
ness. '"2 And while he thinks the task would be
"pleasant and easy" if our reason were "as in our
first ancestor before his transgression," he admits
that in our present state it is encumbered with
difficulties, except where Divine Providence "hath
been pleased at sundry times and in divers manners,
to discover and enforce its laws by an immediate
and direct revelation." 3 But the difficulty of gain-
ing any true knowledge of it is quite insuperable.
The law of God must be absolute like himself, and
before we can know his laws we must be absolute —

jj'*

that is, equal with him. We can know the absolute
in no direction, and science could scarcely find in

1 Blackstone, book i., p. 41.
* Ibid. » Ibid.

12 Law, Its Origin

the Sacred Scriptures rules of conduct which it was
the duty of the State to enforce.

The other tendency in these diverse definitions
is the one represented by that of Austin. Others,
like him, impressed with the uncertainty which
marks what is called the Law of Nature, and dis-
satisfied with the rhetorical language in which the
vague conceptions of it are clothed, go to the oppo-
site extreme and refuse the name of law to every-
thing which is not prescribed in definite language by
the sovereign power of the State. With these
everything which the so-called supreme power of
the State commands, whatever its character in point
of right, is law, and nothing else is entitled to that
designation. And thus while the one tendency
would enthrone Right, the other would erect Force,
as the arbiter of human conduct.

The inquiry naturally arises whence this vague-
ness, confusion, uncertainty, and error concerning
subjects which have engaged the attention of the
most powerful minds from Aristotle to Bacon, pro-
ceeds. Is the law incapable of definition? If so, it
must be for the reason that it can not be known, or
is not known; for whatever is known can be defined
Or do the confusion and contradiction spring from
the fact that truth has not been reached for the
reason that the proper methods of investigation have
not been adopted? In all the physical sciences it
has long been recognised that little can be gained by
indulging in hypotheses and conjectures, and that
the true method of inquiry is to fix the attention
upon the field of actual phenomena to which the

Growth and Function 13

inquiry relates, and arrange our knowledge of the
facts according to the order in which they stand
related to one another. Science deals with facts
alone, and where there are no facts there can be no
science; and where there are facts no progress will
be made in erecting a science which shall embrace
them until these facts have been diligently studied.1
The two diverging tendencies to which I have
alluded seem to me to have arisen from a failure to
recognise these truths. In viewing the law as a body
/of rules proceeding from a supposed Law of Nature
\ — an invisible fountain of right — we are simply
indulging in hypothesis. No such thing is open to
our observation, and, consequently, not to our
knowledge. So, too, when we ascribe all law to the
command of the supreme power in a State we are
simply contenting ourselves with an assumption.
That extremely small part, comparatively, of the
law consisting of statutory enactments may be thus
defined with some approach to truth, but the great
bulk of the law, that which is unwritten, does not

» NOTE. — Since writing the above some observations of Prof. Maine,
of a similar nature, have been brought to my attention. He says:
"There is such a wide-spread dissatisfaction with existing theories
of jurisprudence, and so general a conviction that they do not really
solve the questions they pretend to dispose of, as to justify the con-
viction that some line of inquiry necessary to a perfect result has been
incompletely followed or altogether omitted by their authors. And
indeed there is one remarkable omission with which all these specu-
lations are chargeable, except perhaps those of Montesquieu: They
take no account of what law has actually been at epochs remote from
the particular period at which they made their appearance." (Early
Law, p. 174.)

It is to be regretted that Prof. Maine did not devote himself to a
systematic and sustained inquiry throughout the promising field here
suggested instead of accepting the hypothetical conclusions of Austin.

14 Law, Its Origin

appear to fall under the definition. This is conceded
by Austin, and his mode of meeting the difficulty
is the short and easy one of assuming that the
Sovereign adopts the unwritten law as it is declared
by the courts, an assumption not only unproved,
but unprovable. It is a pure hypothesis.

I know of no difference between the physical
and the moral sciences so far as their methods
are concerned. In the one as well as in the other
there must be a field of actual and observable
fact, and wherever there is such a field a science
is possible. Where there is none, there can be
no observation, and therefore no science. The
world of fact open to our observation is not, in-
deed, limited to the external and material world;
our own thoughts and feelings are equally matters
of fact made known to us by consciousness, and
therefore parts, or susceptible of being made parts,
of our scientific knowledge.

My first endeavour in these lectures will be to
find an answer to the question which has evoked
so many different opinions, and which Sir Frederick
Pollock deems it impossible at present to answer—
What is Law?

There is certainly a region of fact with which the
law is concerned. The common description of law
upon which all are agreed is that it is " a body of rules
the regulation of human conduct," and whether
we look to the exercise of the power of legislation, or to
the action of judicial tribunals, we find that in every
instance the -thing, and the only thing, sought to be
affected by law is human conduct. Of course in

Growth and Function

15 ^

connection with human conduct everything which
directly bears upon it, including especially the
nature and constitution of man, and the environ-
ment in which he is placed, becomes part of the
field of fact to be studied, for these are causes con-
stantly operating upon conduct and affecting it.
Human conduct, therefore, with everything bearing
upon and restraining it, constitutes the arena of
fact which the student seeking for a knowledge of
the true nature of law must explore, and an atten-
tive survey of this field, and a just arrangement of
its contents can, I think, scarcely fail to clear up
much of the confusion and uncertainty which now
obscure our conceptions of the origin, nature, and
function of the law. It may possibly be found that
human conduct is in a very large degree self -regu-
lating, and that the extent to which it can be
affected by the conscious interference of man is
much narrower than is commonly supposed.

Inasmuch as the whole field of human conduct is
to be explored, we should naturally begin with the
earliest exhibitions of it to which our knowledge
extends — that is, to conduct and its regulation in <
primitive society. There is another reason for turn-
ing our attention at first to primitive society. We
can more easily learn the real nature and function
of any complex instrumentality, whether it be a
piece of mechanism like the steam-engine, or an
institution like the law, if we begin by studying it
in its original and simplest form. We thus per-
ceive more easily what is essential, and the numer-
ous additions or modifications necessary to adapt it

1 6 Law, Its Order

to varying circumstances do not confuse us or divert
the attention.

It is not, indeed, possible for us to gain any direct
knowledge of the social condition of pre-historic
man. Our earliest records carry us back a few
thousand years only, and these exhibit man at a
considerably advanced stage of progress. We do
not know how long he has been upon the earth;
but we have sufficient reasons for the belief that he
has been here for a period measured by millions of
years. What progress may have been made during
that period prior to any time of which we have any
knowledge, we can not know with certainty.

There are, however, numerous tribes of men now
living who are nearly destitute of arts and industry,
who do not cultivate the earth, who subsist wholly
upon its wild products, who have only the simplest
implements and dress, rudely fashioned from wood,
stone, and the skins of beasts, and archaeology
brings to our knowledge the existence of implements
of similar character which must have belonged to
men living in geologic periods long anterior to our
own. We know, moreover, that the ancestors in
historic times of the civilised races now upon the
earth used similar implements for presumably similar
purposes. We are safe, therefore, in the conclusion
that the social conditions open to our observation
of barbaric man are really those, or resemble those,
of primitive or pre-historic man.

The tribes of men lowest in the scale of civilisa-
tion of which we have any knowledge are those
which subsist upon the wild fruits or products of

Growth and Function 17

the earth, without other labour than that required
to gather or capture them. They are huntsmen
who pursue their game on land or water with the
rudest implements and at the same time gather
wild honey, yams, cocoanuts, or other wild fruits.
They are usually more or less unsettled, wandering
not widely, but from place to place, as the needs of
their existence require. Those who subsist mainly
by the pursuit of wild animals upon the land roam
through limited regions. Those who live upon fish,
or where wild fruits are abundant, are more settled.
Of these are the inhabitants of Terra del Fuego, the
Patagonians, some tribes of Australia, the Bushmen
of South Africa, the Wood Veddahs of Ceylon, the
Andamanese in the Bay of Bengal, the Abipones of
South America. They may dwell in caves or hollow
trees, or in the rudest huts made of the trunks or
branches of trees. They go, in some instances, naked,
in others with very slight clothing, and in others,
where the climate is severe, they are more com-
pletely clothed in the skins of beasts. They have
no arts or industries save such as are necessary for
the manufacture of their weapons or the construc-
tion of their rude habitations. They have scarcely
any language. The relations of the sexes are differ-
ent in different tribes. In some monogamy, in
others polygamy, and in others promiscuity obtains.
These societies are small and generally inclined to
be peaceful, hostilities with neighbouring tribes being
comparatively rare. They are usually gentle and
kind towards each other. The only things in the
nature of property which they possess are their

1 8 Law, Its Origin

weapons and implements,, their clothing and habita-
* tions, and the right of property in these things is
recognised. They have no laws or organised govern-
ment. There is no headship in the tribe except on
those occasions when hostilities, offensive or defen-
sive, with neighbouring tribes arise, and then the
most capable is selected as chieftain to lead the rest.
But his authority declines when the occasion for it
has passed. There is no council of elders or other
body clothed with public authority. All the members
of the tribe are equal and independent.

And yet in these societies there is a constant
restraint upon conduct. This consists simply in the
obligation felt by each one to do as others do — that
is, to, .conform to custom. Every one knows that if

Khe does violence to another, or steals his property,
he will excite the resentment of the other, and
probably receive from him, and those who will aid
him, bodily punishment. He will provoke retalia-
Tj tion. He will lose the approval and friendship of
his fellow tribesmen. He will be made in various
ways to suffer. These are the consequences, known
beforehand, of a failure to conform to custom, and
they are sufficient to secure conformity, not indeed in
every instance, but in the great majority of instances.
The prime requisite of" human society, that without
which it cannot subsist, is that each member should
know what to expect in the conduct of others, and
that fair expectations should not be disappointed.
When he knows this, and only when he knows it,
he knows how to act himself. This requirement is
supplied by conformity to custom. The obedience

Growth and Function 19

does not proceed from any conception of a principle
of right. It is not felt to be a crime to steal the prop-
erty of a member of another tribe, or to do violence
to his person, or even to murder him. Such acts
indeed are often regarded as virtues and applauded
as such. The custom is obeyed unconsciously in
most instances because there is no temptation to
depart from it, and where the temptation arises self-
restraint is exercised through fear of the conse-
quences. Custom, therefore, is the only law we'
discover at the beginning of society, or of society .
when first exposed to our observation. The word
itself imports its main characteristic, namely, its
persistency and permanency.

The manner in which a compliance with such
customs is enforced is shown in the case of the
Australian tribes above referred to. We are told
that among them "the holiest duty a native is called
upon to perform is that of avenging the death of
his nearest relative, for it is his peculiar duty to do
so; until he has fulfilled this task he is constantly
taunted by the old women; his wives, if he is mar-
ried, would soon quit him; if he is unmarried, not a
single young woman would speak to him; his mother
would constantly cry, and lament that she had ever
given birth to so degenerate a son ; his father would
treat him with contempt, and reproaches would con-
stantly be sounded in his ear."

It is important to observe that the establishment
of a custom requires time, and long periods of time,
and as all conduct is preceded by thought, it also
involves a long series of similar thoughts — that is, of

20 Law, Its Origin

long-concurring common opinion. Custom rests,
therefore, not only upon the opinion of the present,
but upon that of the past; it is tradition passing
from one generation to another. We know no primi-
tive horde even without this inheritance, and this
circumstance, and the respect and veneration for an-
cestors which we everywhere find in primitive peoples,
contribute to make custom more venerable and bind-
ing. I can not do better than borrow the authority
and the words of Mr. Herbert Spencer in describing at
once the existence of custom among primitive tribes
and the force it derives from its transmission from
prior generations beyond the reach of observation.

" It needs but to remember the painful initiation which at
a prescribed age each member of a tribe undergoes (submitting
to circumcision, or knocking out of teeth, or gashing of the
flesh, or tattooing) — it needs but to remember that from
these imperative customs there is no escape; to see that the
directive force which exists before any political agency
arises and which afterwards makes the political agency its
organ, is the gradually formed opinion of countless preceding
generations; or rather, not the opinion, which, strictly
speaking, is an intellectual product wholly impotent, but the
emotion associated with the opinion. This we everywhere
find to be at the outset the chief controlling power.

"The notion of the Yukis that 'if they departed from the
customs of their forefathers they should be destroyed' may
be named as a definite manifestation of the force with which
this transmitted opinion acts. In one of the rudest tribes of
the Indian hills, the Puans, less clothed than even Adam
and Eve are said to have been, the women long adhered to
their bunches of leaves in the belief that change was wrong.
Of the Korana Hottentots we read that 'when ancient usages
are not in the way every man seems to act as is right in his
own eyes/ Though the Damara chiefs 'have the power of

Growth and Function 21

governing arbitrarily, yet they venerate the traditions and cus-
toms of their ancestors.' Smith says: 'Laws the Araucanians
can scarcely be said to have, though there are many ancient
usages which they hold sacred and strictly observe. ' Accord-
ing to Brooke, among the Dyaks custom simply 'seems to
have become law, and breaking the custom leads to a fine.'
In the minds of some clans of the Malagasy 'innovation and
injury are . . . inseparable, and the idea of improve-
ment altogether inadmissible.'

"This control by inherited usage is not simply as strong
in groups of men who are politically unorganised, or but
little organised, as it is in advanced tribes and nations, but it
is stronger. As Sir John Lubbock remarks: 'No savage is
free. All over the world his daily life is regulated by a com-
plicated and apparently most inconvenient set of customs
(as forcible as laws), of quaint prohibitions and privileges.'
Though one of these rude societies appears structureless, yet
its ideas and usages form a kind of invisible framework for it,
serving rigorously to restrain certain classes of its actions.
And this invisible framework has been slowly and uncon-
sciously shaped during daily activities, impelled by prevailing
feelings, and guided by prevailing thoughts, through genera-
tions stretching back into the far past.

" In brief then, before any definite agency for social control
is developed, there exists a control arising partly from the
public opinion of the living, and more largely from the public
opinion of the dead."

Let us next glance at the conduct of man at a
slightly advanced stage of progress, namely, the
pastoral state, in which he seeks his subsistence
from herds of tamed animals, and must, therefore,
roam with them wherever food for them is to be
found. Unlike the primitive savage, instead of
killing whatever animals he captures and consum-
ing them in immediate enjoyment, he tames them

22 Law, Its Origin

and takes only their increase; he practises absti-
nence, and endures labour in the hope of a greater
happiness in the future. It is in this more than in
anything else that we find the promise of progress
and civilisation; for whenever man has learned to
H postpone present enjoyment to a future good he has
//' taken the first step in individual and social progres-
' sion. But the life of the shepherd is still a wandering
one. The communities are small, and present, in
general, so far as the government of conduct is con-
cerned, no features essentially different from those
of the other less wandering tribes. The persistency
of custom and its dependence upon environment
may be well illustrated by a reference to one of these
societies. The Bedouins of the Arabian desert,
although the individuals have greatly advanced in
consequence of contact with civilised peoples, still
exhibit collectively the manners and customs which
distinguished them three thousand years ago.

The chief characteristic which marks the next
stage in social advancement is the adoption, wholly
or partly, of permanent abodes in place of a wander-
ing life, and with it, necessarily, the cultivation of
the earth. The numbers grouped together now
become larger, but the increase is brought about in
two different methods, and they present one of two
widely different aspects according as the tendencies
are to a militant or to a peaceful life. If the society
has the former tendency, it increases by the con-
quest of neighbouring tribes and consolidating them
with itself; if the latter, the increase is manifested
by the natural increase of its own population largely

Growth and Function 23

accelerated by the diminution in hardships which
follows from its abandonment of the wandering life
and by the increased care of children.

Confining our attention first to the warlike
societies, we find that they exhibit what the primi-
tive groups first noticed lack — some organisation of
the State. In war there must be a leader, and abso-
lute power must be reposed in him in order that
war may be made effective. Internal quarrels in
the warrior bands must also be repressed, and the
power bestowed upon the chieftain is employed for
that end. The most skilful warrior acquires this
chieftaincy and it becomes paramount in him, and
develops into kingship. This power, supported, in
peace as well as in war, by bands of warriors, be-
comes absolute, and the chieftain is able to choose
his successor. He naturally chooses his son, and
thus arises the tendency to hereditary monarchy.

In order, however, that the king may maintain
his authority over the tribes he has conquered, he
selects a company of favourites from his subordinate
chiefs, the leaders of his warrior bands and the heads
of the conquered tribes, who are made rulers simi-
larly absolute over such tribes, though subject to
him, and through these tributes are exacted and
levies of warriors made from the local populations.
The land is everywhere distributed among those
who have distinguished themselves in battle, or
otherwise secured royal favour. Prisoners taken in
war are made slaves to cultivate the land, and
thus classes are created in the State, all except
the slaves enjoying privileges over those beneath

24 Law, Its Origin

them, and dependent for the enjoyment of such
privileges upon the favour of the sovereign; and
thus the kingdom becomes consolidated into a
powerful tyranny. The African kingdoms of Da-
homey and Ashantee are typical instances of such
societies.

How is conduct regulated in such groups ? We do
not find any legislative bodies organised to enact
laws, nor does the sovereign either by himself or
through ministers declare any designed to affect the
ordinary life of the people. The different tribes of
the kingdom already, when conquered, had their
customs, as we have seen, the silent growth of
long periods of time, and these continue as before
with all their sanctions. The tyrant could not
change them, with all his power, even if he would,
for, as we have seen, they are unchangeable except
in the ways by which they were formed; but he
does not wish to change them. All tyrants are
unqualified advocates of the maintenance of things
as they are. These barbarous sovereigns, indeed,
are personally above the customs, and plunder, rob,
and murder at their will. Their tyrannical authority
is sustained by favour and fear, but public peace
and order beneath them it is their interest to pro-
mote. The ancient customs are supported by the
ancient sanctions, except in the case of slaves who
are left at the mercy of their masters. There is
indeed an additional sanction. The State is or-
ganised, although rudely. It has a political form;
the sovereign and his subordinate chiefs are clothed
with power in the bands of warriors whom they

Growth and Function 25

command, and the weak, when injured, appeal to
them, and they enforce redress. Violations of cus-
tom are punished by the public authority, and thus
beginning is effected in the public redress of
private injuries; in other words, what we know as
the public administration of justice begins, although
in a very crude form. But whether an act is a
public crime, or a private injury, depends as before
upon its conformity, or nonconformity, to custom.
The advance, for such we must regard it, furnished'
by this new sanction of custom, is one of the results
of the integration of small primitive tribes or hordes
into a larger society, and, though effected by war
and violence, is in itself beneficent. If we are to
have absolute tyrannies, it is well when a number
are swallowed up in one.

LECTURE II

TURNING now to the other division of early socie-
ties first exhibiting the beginnings of political or-
ganisation, namely, those characterised by peaceful
dispositions, and which extend themselves, not by the
conquest of adjacent tribes and their territories, we
find, although not universally, tendencies towards
democratic instead of monarchical organisation.
This consists usually in the establishment of a coun-
cil composed of elders of superior wisdom and
moderation in which the public authority is lodged.
We find examples of such societies among the bar-
barous tribes of Germany in early ages. Although
nearly all these tribes possessed warlike qualities
which made them formidable in battle, they did
not engage in war generally for the sake of extending
their own sway by the conquest of the territory of
adjacent tribes, but for plunder, or retaliation, or
glory, and some of them were naturally inclined to
peace, not taking up arms except in defence against
hostile attack. Other instances of substantially
similar societies are found among the islanders
of the Pacific, such as the Tahitans, the Tongas,
the Samoans, and the inhabitants of the Sand-
wich Islands, although the external conditions are

different.

26

Law: Origin, Growth and Function 27

The characteristics of these tribes are, in general,
an increasing scarcity of wild game, the possession
of a fruitful soil, yielding a large product for moderate
labour, some increase in the density of the popula-
tion and consequently some advance in co-operation
by means of a division of employments and exchange
of services. These conditions greatly enlarge the
intercourse between individuals and multiply their
relations with each other. The necessity thus arises
for a more extended regulation of conduct. We do
not, however, find that any new instrumentality is
employed. No laws are made by the kings, or the
local chiefs acting under their authority, or by
councils composed of chiefs or elders. This cannot
be wholly in consequence of ignorance of the art of
writing, for laws orally promulgated may be enforced
and may be perpetuated by tradition. The only
way in which conduct is regulated at this stage is,
as before, by custom. The change from the sparse
numbers of primeval tribes living upon the natural
fruits and products of the earth has been very slow
and gradual, and as the changes occur new customs
grow up to answer the new needs, but custom is still
.the only law. There is less and less resort to forceful
and^vtoIenTredress of injuries and more and more of
appeal to public authority for justice. This justice
is administered by various persons or bodies; some-
times by the King, sometimes by his officers sur-
rounding him, sometimes by local chiefs, who have
the government of districts, sometimes by a council
of chiefs or elders. But in such cases they act
judicially; the rights they enforce and the wrongs

28 Law, Its Origin

they redress are such as derive their character as
rights or wrongs from the existing customs. There
is now what did not exist in the wandering horde, a
society more or less efficiently organised, and a
public administration, however imperfect, of justice
or rather something which points towards, and may
eventually become, an administration of justice.
These conditions have subsisted in many parts of
the earth from our first acquaintance with them
down to the present time. This earliest assumption
of functions in their nature judicial by the chiefs
or councils, in societies which have become some-
what settled and organised, does not, at once, super-
sede the other agencies by which violence and dis-
order were previously repressed, such as private
vengeance, the unfriendly opinion of tribesmen, or
the superstitious fear of evil coming from the ghosts
or spirits of the departed, but it reinforces those
agencies. Their united power in restraining con-
duct is often very great. Tacitus says, speaking of
the German tribes, that their good customs were of
greater power than the good laws of other people.
"Plusque ibi boni mores valent quam alibi bones
leges."

Nor is there as yet any conception of justice
other than as of an obligation to obey the injunction
of custom and tradition which in most, if not in all.
tribes is assumed to be imposed by some great ances-
tor or ancestors, or other disembodied spirits, exer-
cising from an unseen world their authority over
mundane affairs. The profoundest enquirers into
the internal factors which make up the primitive

Growth and Function 29

man everywhere find a belief in the existence of a
world other than the visible ^qgf , inhabited by gods
and demigods, and by the spirits of man's own an-
cestors as well — beings who hold and exercise a mys-
terious power over the lives and fortunes of the living.
Offences against the customs and usages are offences
against them, and from them proceed the commands
to obedience. The interpreters of this Divine Will,
sometimes under despotic rulers, were the king and
the priesthood; in more democratic societies, the
elders or wise men, together with the priesthood.
This spiritual power is wielded by those who come
to be regarded as in communication with the unseen
world, and thus constitute a priesthood. They act
in alliance with the public authority, and afford
powerful assistance in the maintenance of peace
and order.

Another feature, characteristic of this as well as
of all the preceding social stages, while it operates
in some ways to enlarge violence and make strife
more deadly, yet on the whole restricts it. This is
the f amily^JJ£«. The family appears as the unit of
society. Its members stand by each other in all
fortunes. If strife breaks out between some indi-
viduals of the family itself, the others compose it;
but if a member of one family is slain by the member
of another, or otherwise injured, the quarrel is taken
up by the respective families, irrespective of right
or wrong. Retaliation is the immediate impulse;
homicide is offset by homicide; robbery by robbery;
an eye for an eye and a tooth for a tooth is the
maxim of action. We are not to suppose that all

3° Law, Its Origin

the members of a family welcomed the opportunity
which an offence given by one of its number afforded
to engage in strife with another family. On the
contrary, these quarrels were so likely to result in
bloodshed that they were dreaded, and the com-
mission of an unprovoked injury which would com-
pel the kinsmen of the guilty person to risk their
lives in his defence was an injury also to the family
to which he belonged. The family might punish
him themselves, or even abandon him for punish-
ment to the family he had wronged.

As the tribe becomes more settled, and industrial
pursuits become more established, bringing with
them some accumulations of property, some division
of labour, some trade and commerce, and conse-
quently some increased complexity in social life,
the necessity for increased peace and order becomes
more deeply felt, and the want can be supplied only
by the adoption of some more peaceful method of
redressing grievances. So long as there was little
or no property, and disputes arose more from mere
passion and accompanying violence, the intervention
of the chieftain, or the priesthood., was probably the
best agency for' bringing about peace and order;
but on the springing up of industry with its ac-
companying contractual relations and accumulations
of property, new customs arise, and with them more
distinct conceptions of what is due to one from
another as the reward of service, and the want
necessarily becomes felt of some more intelligent
and just decision of controversies. When men enter
into contractual relations with each other, expecta-

Growth and Function 31

tions are immediately raised, and when these are
disappointed trouble arises until some satisfactory
redress is afforded. This can come only from a
decision by those acquainted with the grounds of
the dispute and able to decide it in such way as to
afford reasonable satisfaction; in other words, from
a decision by experts. What is demanded at this
stage of human progress is, not some new law, for
the conception even of legislation does not as yet
exist, but some properly qualified judge, and some
method of compelling the appearance of an adversary
before him — that is to say, a method of procedure.
An existing dispute between men must, of necessity,
consist of a difference of opinion concerning the
conduct which one is entitled to expect from the other,
and the expectation of either party can be justified
only by an appeal to what he supposes to be the
existing rule or custom applicable to the case.
Neither party will assert a new rule, for that would,
of itself, condemn him. Accordingly we find that
the first step in the way of improving the adminis-
tration of justice is to establish a tribunal for the
sole purpose of determining controversies. This is
the beginning of Procedure^ and "procedure pre-
supposes an already existing law, or something
standing in the place of law, which is to be adminis-
tered by it.

This stage of society, that of increasing industry
with its accompanying trade and commerce, is also
the one in which writing becomes necessary, and in
which it is first found to be employed. Judicial
tribunals could not, indeed, be so established as

32 Law, Its Origin

to effectively answer their purpose without the aid
of writing, and therefore I shall roughly regard the
creation of such tribunals as nearly contempora-
neous with the introduction of the use of writing,
-} which, I believe, will be found upon historic inquiry
to be probable.

A conjecture of Blackstone is not unnatural that
the dominance of custom in the governing of con-
duct at the period under consideration may be
owing to the fact that there could be no written
law until the art of writing had been acquired, and
the existence of some very ancient codes, like the
laws of Solon, may suggest that as soon as men had
discovered an instrumentality by which they could
frame laws they employed it for the purpose of
providing themselves with more fixed and certain
rules of conduct than mere custom could supply.
But the conjecture seems not very probable, inas-
much as writing is supposed to have been known
about 1500 B. c. — many centuries prior to any
authenticated instance of its use in the making of
laws. It may, however, have been employed for
purposes the knowledge of which has not come down
to us; but the important question is, whether it
was employed for the purpose of supplanting cus-
tom. II must pause, therefore, to scrutinise tKeTear-
liest well-known instances in which writing was
employed for the purposes of legislation, with the
view of seeing how far, if at all, this may have been
the object, or whether custom still remained, not-
withstanding this new instrumentality, the only
source from which rules of conduct could be de-

Growth and Function 33

rived. We may feel sure that if writing were ever
in early times employed to supplant custom, that
purpose would clearly appear in the most ancient
codes of which we have any knowledge.

Omitting any reference to the Code of Draco, of
which we know little or nothing, the first consider-
able employment of writing in the composition of
laws was in Athens by Solon some time about the
year 594 B.C. For a long period prior to this, Athens
had been a large populous State, and had reached
a high stage of civilisation. Its citizens were ex-
tensively engaged in commerce and in various forms
of industry, and a regular government, with an
archon, or archons, for chief rulers, had existed for
several centuries. It was the age which just preceded
the most glorious period of Grecian history, the
period of Thermopylae and Marathon. Moreover,
intellectual cultivation had advanced to a con-
siderable elevation. Thales was already indulging
those philosophical speculations which two centu-
ries later were carried forward with a power and
subtlety never since surpassed, by Socrates, Plato,
and Aristotle. In such a society, with such pur-
suits, the law of contract must find a most important
place, and there is indeed occasion for a juristic
system approaching, though not reaching, in extent
and refinement that which we find in the advanced
period of Roman civilisation, or in the cultivated
societies of modern times.

What, then, was the principal motive which in-
duced the people of Athens, under the guidance of
Solor^ to seek to embody their will in written lan-

3

34 Law, Its Origin

guage ? Was it that they believed that a law existing
only in the public consciousness and evidenced only
by custom, was insufficient for the ordinary pur-
poses of civil society at the stage which society had
then reached, and that it was expedient that all
their customary rules of a juristic nature should be
reduced to written formulas, or was it that there
were ^special exigencies causing disturbances in
society and bringing customs into doubt and conflict^
and making it necessary, in some measure, to recon-
struct the social and political organism on some^
basis of reconciliation? We shall find that the
latter of these two questions suggests the true answer.
Following what has just been said of the condition
of Athens at the time, we may add the observations
of an intelligent scholar upon the same points:

"It was a time of fermentation in society; Psammetichos
had opened the Nile region to the Greeks (B. c. 666) ; the first
money had been coined in ^Egina ; navigation took all at once
a gigantic stride forward; young adventurers gained in a few
years great riches, and those parts of the communities en-
gaged in trade took form as a new middle class, and stood defi-
antly opposed to the ancient families; property in land was
outstripped by movable capital ; around Athens on all sides —
in Argos, Corinth, Sicyon, Megara — the old system of things
had been broken, the ruling families had been overthrown,
and through the downfall of the constitutions single tyrants
had come to power, who shone by their riches, employed mer-
cenary troops, and pursued a narrow policy of self -aggrandise-
ment. In this revolutionary time, spite of all splendor, the
;t>est possessions of the nation were endangered — namely, the
'.free citizen class and the sovereign authority of the law."1

1 Ernst Curtius, in Johnson's Encyclopaedia, sub verbo, " Solon."

Growth and Function 35

All this indicates conflicts of custom in the in-
terior of society, a destruction of that concurrence
of public sentiment upon which the stability of
custom reposes, and a social conflict which could
be repressed only by overwhelming physical force,
or by a reconciliation based upon popular assent.

Passing to the contents of the legislation of
Solon, this view of the condition of society and of
the purpose of the new laws is confirmed. Solon
played the part of mediator between the contending
parties. He lightened the burdens of the debtor
class, enabling the poor to escape from the grinding
tyranny of their creditors, took the political power
from the ruling families which had theretofore exer-
cised it, gave all citizens a share, though not an
equal share, in the enactment of laws, redistributed
the burdens of taxation, and generally gave a more
democratic form to the political constitution of the
State. All this imports a sudden settlement of pre-
existing conflicts in popular customs, and one which
can be effected in two ways only, either by over-
powering force, or by social agreement, and in the
latter case written law seems to be a necessary
instrumentality. By no other means can the points
agreed upon be defined by a permanent memorial
to which appeal can be made at all subsequent
times.

Turning now to the history of legislation in
ancient Rome, we find that the earliest considerable

;iployment of writing was in the enactment of
what is known as the Twelve Tables, in the year
451 B.C., the 3O2nd year of the foundation of the

36 Law, Its Origin

city. The condition of Rome at that period resem-
bled in many particulars that of Athens at the time
of the enactment of the Code of Solon. Rome was
a large and populous State with a government in
many respects highly organised. It had a population
of several hundred thousand, a large commerce, and
a consequent minute division of employments and
large aggregations of wealth. There was a large debtor
class which shows that in the course of social devel-
opment the stage of contract had long been reached.
In every rude society from the first beginnings, the
governing power, together with the administration
of justice, is lodged either in a king or with the older
and more prudent members. These, as society ad-
vances and wealth accumulates, become the most
wealthy, and the powers of government, including
the interpretation and enforcement of the customs,
are naturally wielded more or less in favour of the
interests with which they are lodged. It was so in
a high degree in Rome, and this condition had been
the source of dissatisfaction and unrest for a long
time prior to the adoption of the Twelve Tables.
The royal government, which under seven succes-
sive kings lasted two hundred and forty years, had
^ been overthrown and a government somewhat re-
publican in form, with Consuls as the chief magis-
trates, established in its place. The Consuls were,
after a few years, displaced by a Dictator, and his
authority was soon afterwards transferred to a body
of ten called Decemvirs. The people were divided
into two principal classes, the-patricians and_the
plebeians, and the constant complaint of the latter

Growth and Function 37

was that the powers of government, both executive
and judicial, being lodged with the patricians, were
exercised in favour of their own order and to the
oppression of the plebeians. The latter class had
become so powerful and its frequent rebellions so
dangerous that its demands could no longer pass
unheeded, and the Decemvirs were charged with the
duty of reorganising the political government and
framing such laws as would reconcile the conflicting
elements of the State. They were engaged in this
work for two years, in the course of which they sent
a commission to Athens to examine the govern-
mental framework and the laws devised by Solon,
and their work in the form of Ten Tables was
accepted, and, with two additional ones, subse-
quently adopted, remained, professedly at least,
the basis of the Roman jurisprudence until the age
of Justinian.

The use of writing had, we may safely presume,
been carried from Greece to her colonies soon after
she had acquired it, and would thence pass easily
to Rome. It must have been known in that city
for centuries before the Twelve Tables, and there
is reason to believe that during this period it was
occasionally employed in the enactment of some
particular laws, but the Twelve Tables were the
first instance of its employment upon a considerable
scale.

The important features of this review of the early
legislation of Athens and Rome, to which I wish to
call attention are these: First, that a high degree s
of social advancement, displaying large populations,

3$ Law, Its Origin

division of employments, development of industry
and commerce, and highly organised governments,
was reached and maintained without the employ-
ment of written laws; second, that the chief motive
of the first resort to such law was internal conflict
among the different elements of the State threaten-
ing revolution, a conflict which could not be ter-
minated except by the complete subjection, by
overwhelming force, of one of the contending par-
ties to the other, or by the faithful observance of
a reconciling agreement. Such an observance would
scarcely be possible unless the terms were perma-
nently embodied in written law. Custom is effectual
only when it is universal, or nearly so. In the
absence of unanimity of opinion, custom becomes
powerless, or rather does not exist.

I now return from this incidental consideration of
the early employments of writing for the purposes
of legislation to the further treatment of that stage
of social progress marked by enlarging industries
and consequent efforts to substitute in place of the
violent redress of injuries the peaceful method of
judicial tribunals, and the steps successively taken
until the establishment of such tribunals. Any
exact tracing of the progress, or of the order, in
which the successive steps were taken would be
impossible. In the civilisations of Greece and Rome
the process had become far advanced at the time of
the beginning of the known history of those nations ;
nor does the history of the States of modern Europe
throw more than a feeble light upon the precise
nature of this early process; but if we put together

Growth and Function 39

the scattered pieces of information which are still
within our reach, and draw from them their full
significance, we may trace the general features of
the progress, and this is all that is necessary. The
main difficulty in this study is to rid ourselves of
the notion that in these remote times men had the
same objects and interests in view and were moved
by the same desires as we are conscious of ourselves.
We may do something towards removing this ob-
stacle by attempting to form a rude picture of early
society, beginning with barbarian times, times even
preceding those of increased industry, such a picture
as all of them present with greater or less similitude,
but which is best furnished to us by the accounts
we have of the German tribes, our own ancestors.
We are to imagine a tribe of men living in fixed
habitations, and subsisting mainly by the rude
cultivation of the earth. Substantial equality among
the freemen is to some extent broken by the presence
of some elevated above the others by superior prow-
ess, or character, or accumulations, or the possession
of priestly qualities, but there is a head of the tribe,
an elected chief or king. There is no permanent
political organisation for any public purpose. There
are meetings, some regular, and others special, of
the freemen, at which matters involving war or
peace with neighbouring tribes and any other im-
portant matters interesting to the whole tribe are
considered and determined. There are many slaves
consisting chiefly of captured enemies, and their
descendants, and the more powerful members of
the tribe are usually those having the largest pos-

40 Law, Its Origin

sessions of land and slaves. Property and marriage
exist. The unit of the tribe is the family, the mem-
bers of which live together and stand by each other.
These institutions rest upon custom alone. There is
no ethical conception of a right except some vague
belief that some unseen power will punish one who
violates custom. To plunder from the members of
any neighbouring tribe is no crime. Custom, as the
word itself imports, is generally obeyed, but there
are frequent departures from it, and consequently
much violence and turbulence among tribes com-
posed of the more warlike men; but among the more
peaceful groups the observance of custom may be
even more complete than obedience to law in modern
societies. <^The only security for person or property
among those who are warlike is to let each man
know that he can invade neither without losing his
life or suffering punishment at the hands of him
whom he injures. The path of safety is to follow
custom. /When this is done expectation is not dis-
appointed and resentment is not provoked. Tur-
bulence and strife arise from many causes; but the
principal ones are: (i) the mere love of fighting, the
disposition to quarrel upon slight offence, the pas-
sage from words to blows and weapons and con-
sequent homicide. The family of the slain are
angered and seek revenge upon the slayer who
takes refuge in his own family, and they stand to
their arms in defence. A pitched battle may ensue,
and other lives be sacrificed, and a family feud
occasioned which may not be cured for a generation.
(2) Disputes about land. Titles, resting much upon

1

Growth and Function 41

occupancy or tradition, are subject to much doubt.
One man charges another with being a trespasser
and demands that he leave the disputed territory.
A refusal is nearly certain and a fight to death
ensues. (3) A man is found in guilty intimacy with
the wife or daughter of another. An injury like this
provokes instant vengeance. We have survivals in
our own country at the present time of these ancient
modes of redress.

But the progress of industrialism is not consistent
with the retention of these methods. The man who
has begun to long for increased possessions does not
wish to keep himself and his retainers in arms to
defend them, and he comes to dread the personal
peril; and the one who labours has less leisure for
quarrel. The desire for peace is more and more felt,
but it must be "peace with honour." It must not
be allowed to be thought that an injury can be
inflicted with impunity. The point is how to get
out of the trouble without fighting. The way to
attempt it is obvious enough; it is not to begin
fighting; in other words, to parley, and parleying
means negotiation and possible compromise. This
usually involves calling in the aid, or accepting the
proffered intervention, of the bystanders or other
third parties, and thus the efforts of many are enlisted
to compose the strife. If a man has been slain in
mutual combat provoked by both parties, the re-
sentment is not so deep; but the family of the
victim have a feeling that the slaughter of one of
their members must be avenged. If they may save
their honour without retaliation they are satisfied.

42 Law, Its Origin

The payment of a sum of money or delivery of other
property means that the aggressors have purchased
peace from the friends of the victim and thus ac-
knowledged their power. Accordingly, we find a
custom established everywhere in barbarous society
of the payment of a certain fixed sum by the family
of one who has slain another to the family of the
victim by way of compromise for the injury. It would
be nearly true to say that we know of no race or tribe
of men in the past who, or whose ancestors, in the
case of civilised people, did not have this custom,
or any now barbarous tribe which does not have it.
We do not indeed find it in existence at the time
of the earliest historical accounts of Greece and Rome
which have been preserved to us; but those accounts
do not reach back to the really barbarous times of
those nations. The Laws of Solon and the Twelve
Tables of Rome were regulations for peoples who
had for centuries emerged from a state of barbarism,
but we can not doubt that if light were thrown upon
the antecedent periods we should find that this
method of composing strife and preventing blood-
shed preceded, among them, the selection of magis-
trates to declare and execute law.1 There are in the
poems of Homer many evidences that such was the
fact, and lexicographers inform us that the Greek
word voivTJ and the Latin poena originally signi-
fied the price, or composition, by which crime was
expiated. The Germans, our own ancestors, were
found in this condition of barbarism within historic
times, and Tacitus informs us that all crimes were

iKoenigswarter, D6velop$ement de la Soctite Humaine Part ii., ch. i.

Growth and Function 43

compounded by the payment of cattle.1 The an-
nals of the Jews do not carry us back to the times
when they were barbarians, yet that the practice
of compounding was once prevalent among them
is manifest from passages in the old scriptural
writings.2 Among the savages and barbarians of our
own day, the custom of individuals or families to
avenge their own wrongs and to accept compensa-
tion as the price of forbearance may be said to be
universal. Mr. Alexander Sutherland, in his interest-
ing and valuable work entitled ' The Origin and
Growth of the Moral Instinct, has especially pointed
out the payment of compensation for violent injuries
as being the first step from the indulgence of retalia-
tive vengeance towards a more peaceful redress.
He says: ''Somewhere about the level of the higher
savages, or more generally of the lower barbarians t
the increase of settled life, and the possession of
huts and crops liable to destruction in war, produce
a jgreaier__ appreciation _of_ the ad

Feuds are now avoided by the payment of com-
pensation. According to Morgan (League of the
Iroquois, p. 331), if an Iroquois committed a
murder, a feud was at once established between
the two families, unless, as was sometimes done,
the relatives of the murderer refused to stand by
him; or unless, as was far more often the case,
they agreed to make a payment in wampum or
other property, to the family of the murdered man.
Galton tells us that among the Damaras a murder
will commence a feud unless the family of the mur-

1 Gertnania, 12. J Num. xxxv., 19.

44 Law, Its Origin

derer pays two oxen to that of the person slain.
Of the Maoris, Thomson says (i., 123) : * Revenge was
one of a chief's first duties ; an insulted New Zealander
would rush to his tribe and relate the injury he had
suffered; then, if payment were refused, war might
ensue. *re Land and women were the chief causes of
strife. They were cautious of rushing into wars, and
in every dispute mediations were gladly accepted
until blood was actually shed. Every offence but
murder had some pecuniary equivalent.

"Guinnard states that the Patagonians (or Arau-
canians) ' put to death the enemies of a slain person,
unless they agree to pay a heavy ransom,' (p. 179)
and among all the more primitive negro races, with no
exceptions that I have noticed, murder can be atoned
for with a sufficient payment. Brookes says that
among the Dyaks the ordinary compensation for
murder is worth about eight pounds sterling; and St.
John says that adultery is compounded for by a
customary fine to the family that has been aggrieved.
Some barbarian races, more vindictive or less avari-
cious than others, are with greater difficulty induced
to forego the blood penalty for a payment; but there
is none, so far as I know, in which it is not more or
less customary to accept compensation and avoid a
feud." Mr. Sutherland's book, which fell under my
notice when I had nearly completed these lectures,
contains a very instructive chapter on "The Growth
,V"of Law"1 from which the above passage is taken
- and in which I am glad to find a confirmation of my
own views.

1 Vol. ii., p. 163.

Growth and Function 45

Prof. Cherry, in his lectures upon The Growth of
the Criminal Law in Ancient Communities, com-
pares the stage of barbarism in four ancient peoples
widely separated in time and geographical situation,
and finds in each of them the same practice of re-
dressing injuries by private retaliation, or self-help,
tempered by composition on the payment of a
ransom. These four peoples, some of them em-
bracing large parts of the human race, were the
ancient Irish, the Hebrews, the Mahometans, and
the early English. He might have included in the
range of his observation numerous societies of bar-
barians now living in which the same methods of
repressing internal strife are employed.

But the evidences are numberless, and the fact
may be regarded as universal and admitted.1 No-
where does the practice appear more conspicuously
than among the barbarian conquerors of Western
Europe, including England. That it was the only,
or principal, form in which violence and crime were
repressed is manifest from the fact that the Laws
of the Barbarians are, to a very large extent, occu-
pied in enumerating the various compensations which
are to be paid for injuries done to person or property,
and the Laws of Alfred present the same feature.

But it must not be supposed that the custom of
accepting compensation, even when the amounts
were fixed by what was called the law, such as the •* *
Laws of the Barbarians and of Alfred just mentioned,
really amounted to what is properly called law.

1 The chapter in Koenigswarter contains the fullest information.
Part ii., ch. i.

46 Law, Its Origin

These so-called laws were not laws in the modern
sense of written law — that is, commands which
would be enforced by the State in a formal manner.
Of such law there was at the time none, because
there were no tribunals to declare, interpret, and
enforce it. The very fact that the compensation
was resorted to as the only means of preventing
violence and bloodshed is complete proof that no
other law than private., vengeance or self-help
Ifltny tribe or people nad the^owerto

compel the acceptance of compensation for murder,
it would have had power to prohibit murder directly
and to enforce the prohibition by effective punish-
ment. The object of the laws fixing the amount of
the wergild was to supply an indefiniteness of custom.
Inasmuch as the compensation was the fruit of a
parleying between the combatants, there would be
contention about the amount, and such amount
would exhibit wide differences according to the
nature of the offence and the character of the
parties. Where there was a willingness to accept
a compensation there would still remain a difference
about the nature and amount of it. The aggrieved
party could honourably accept an amount provided
it was fixed by some one other than his adversary.
The laws just mentioned assumed to determine the
sums for every description of offence, and this de-
cision would be eagerly accepted by a party who
wished to save himself the peril of deadly strife,
and thus the amounts, with the aid of the laws,
would come to be established by custom. Compen-
sation, therefore, was no certain preventative of

Growth and Function 47

violence. It was the recognised right of the injured
party to refuse to accept it, if he chose; and what
would then happen? Manifestly as the attempt to
prevent a fight had failed, it must take place, and
the parties must stand up for it. The right of a party
to redress an alleged wrong by his own arm is evident
from the fact that when all efforts for a pacification
had failed, rules were made for conducting the
inevitable fight. This was the origin of the judicial
trial by battle, of which Gibbon says: "It was not as
a mode of proof that the combat was received,
in every case the right to offer battle was founded
on the right to pursue by arms the redress of an
injury." However, with the progress of indus-
trialism the effort to prevent violence would increase,
and if an injured party refused to be pacified after
his adversary had offered the customary redress,
the remonstrances of the fellow-tribesmen would
be employed, and if these failed, intimations, or a
plain declaration, would follow that the tribe was
determined upon peace, and if the obstinate party
persisted in his purpose, he would encounter a force
which would render the strife dangerous only to
himself. He must do something, and the question
is what he shall do. Thep©4s-but one^answer to this :
he must leave it to sojne third persoh to say what
he shall do, and this is drbitrati&i£j^&& sole possible
resort which the parties to a deadly strife can have,
and preserve the point of honour, when one refuses
to accept the redress offered by another, and is made
aware that persistence in his purpose to take revenge
upon another will cost him a sacrifice he is not

48 Law, Its Origin

willing to make. This is a lesson which has been
taught to contending individuals or families through
many ages in the past. Nations are beginning now
to learn it.

The person or persons selected as arbitrator or
arbitrators would of course be of the class supposed
to be grave, impartial, and familiar with the customs,
for it would be expected that the decision would be
based upon comparing the conduct of the disputants
with the established customs. This arbitration of
quarrels is a near approach to the establishment of
a court. All that needed to be added to constitute
a court was to create permanent arbitrators and
compel disputants to keep the peace and provide a
mode by which they should be forced to submit
their differences to the decision of the tribunal.
That judicial tribunals came to be established by
taking this step is open to little doubt; but a long
period was occupied in reaching the end. Why was
it that an expedient apparently so obvious was not
more speedily adopted ? Simply for the reason that
it is a direct advance abolishing self-help by sub-
stituting public help ; and this requires the conscious
action of society as a corporate whole. It must have
a corporate will and a corporate power — that is, it
must become a living intelligent organism. Some
individual, or some selected individuals, must be
capable of commanding the physical force of the
body of society, must be able to contribute methods
of compulsory arbitration, and have the power
needed to enforce them. This condition will not
arise until the demand for it becomes sufficiently

Growth and Function 49

strong, but the demand will come as soon as the
industrial spirit seeking increased possessions and
more perfect peace in order to increase them, and
to hold them, has created the social conviction of
a necessity for the improvement. The step may be
facilitated by accident. War with neighbouring
tribes may bring forth a military chief who will be
able to make his power permanent and thus erect
himself into a king or civil chieftain, or a civil coun-
cil may be voluntarily chosen, and a head thus
given to society capable of discerning and supplying
public needs; but such as these can not originate
out of their own heads a scheme of improvement
and impose it upon society regardless of custom.
There are no Law-givers such as are reverenced in
history. Moses, Lycurgus, and Solon took the cus-
toms of their time, and gave them form and furnished
better methods of securing their enforcement. Solon,
according to Plutarch, when asked why he did not
give the Athenians better laws, answered that he
gave them the best they were fitted to receive.
Niebuhr informs us that "no one in the ancient
world took it into his head to make a new system of
laws. In the Middle Ages, also, a legislation merely
springing from the will of a law-giver is scarcely to
be traced anywhere"; and the same view is well
expressed by Coulanges, who says "that legislators
did not exist among the ancients. Nor did ancient
law originate with the votes of the people. In early
days the laws present themselves as something even
then venerable and unchangeable."1

' Coulanges, The Ancient City, p. 250.
4

50 Law, Its Origin

For obvious reasons, as already observed, the
passage from self-help, including arbitration, can
not be traced in the history of Greece or Rome.
At the times to which our earliest accounts of those
nations reach, courts of some description were al-
ready established, the age of barbarism having been
long anterior, but the description of the Legis Actio
Sacramenti, the most antique form of Roman pro-
cedure, and the parent form of all subsequent civil
actions, as preserved to us in the Institutes of Gaius,
bears upon its face the marks of its origin. The
form of proceeding is thus described by Prof. Maine:
''Two armed men are wrangling about some dis-
puted property. The Praetor, vir pietate gravis,
happens to be going by, and interposes to stop the
contest. The disputants state their case to him,
and agree that he shall arbitrate between them."1
The Legis Actio Sacramenti was compulsory, but the
record in it, embracing the above statement, clearly
shows that the Praetor, the Judge, was the suc-
cessor of a private citizen to whom two disputants
had voluntarily submitted their difference.

The corresponding stage in the social history of
Western Europe is, for similar reasons, enveloped
in equal obscurity. History affords rare and obscure
glimpses of the details of life, although there are large
masses of documentary matter still unexamined
which would probably furnish much additional
light. But such evidences as are available agree
in making it probable that the first step in repressing
the private redress of wrongs among Western Euro-

i Ancient Law. p. 376

Growth and Function 51

pean peoples was in bringing about an arbitration
of quarrels. Prof. Maine has pointed out a very
significant correspondence between the functions of
the Druids as described by Caesar in his Commen-
taries on ike Gallic War and those of the ancient
Brehons as they are revealed in the translations of
the ancient so-called ''Irish Laws" published not
many years ago. Caesar informs us — I give the
language of Prof. Maine —

that the Druids were supreme judges in all public and private
disputes; and that, for instance, all questions of homicide, of
inheritance, and of boundary were referred to them for deci-
sion, . . . that the Druids presided over schools of
learning to which the better youth flocked eagerly for instruc-
tion, remaining in them sometimes (so he was informed) for
twenty years.

Prof. Maine further says, referring to the newly
published "Law-Tracts," relating to the ancient
laws of Ireland :

The extensive literature of law just disinterred testifies to
the authority of the Brehons in all legal matters, and raises
a strong presumption that they were universal referees in
disputes. Among their writings are separate treatises on
inheritance and boundary, and almost every page of the
translation contains references to the ' eric ' fine for homicide.

We have here convincing proof that in the widely
separated divisions of the Celtic societies at sub-
stantially the same social stage there was a class of
persons who made the customs of their peoples the
subject of especial study and were habitually em-
ployed as arbitrators in disputes. This employment
of arbitrators must have been voluntary, for there

52 Law, Its Origin

was, at the time, no organised society capable of
enacting laws or contriving other social arrange-
ments. The Brehon laws, so-called, do not purport
to be the enactments of any public authority, but
collections of the legal maxims and rules adopted
by the Brehons in performing the judicial functions
voluntarily bestowed upon them. The fact that
among these ancient peoples there were classes of
persons devoting themselves solely to what may be
called the law — that is, the rules and customs observed
by their tribes, proves that there was a demand for
their knowledge and services as the arbiters of dis-
putes, and that such demand had existed for long
periods. They could have no authority except such
as was derived from the assent oFdisputants, and
such assent must have been habitually given; for
otherwise there would not have arisen the demand
-Jior such a class. The custom, therefore, was brought
about of displacing the bloodshed and violence of
self-help with the peaceful jnethod of arbitration^
The fair inference is that all the well disposed of the
tribes resorted to these customary methods of settling
disputes, and that those who refused to do so were
those vicious and depraved members who habitually
defied custom — that is, the lawless class. Arbitration
could not be literally compelled, for its very existence
implied that there was no organised public authority
which could compel anything; but custom supplied
a powerful force in bringing it about, and other com-
pelling influences were added to custom. Among
the Celtic tribes described by Caesar, if a disputant
refused to obey the decision of a Druid he was, as Sir

Growth and Function 53

Henry Maine gathers, excommunicated, by which we
are to understand that he was excluded from the pro-
tection and shut off from the fellowship of his tribe,
and this substantially made him an outlaw, which was
regarded as the severest of penalties. Where the
rule of the priesthood is strong, as it was among
the tribes of Gaul, and must necessarily be where
the priests exercise judicial functions, this depriva-
tion of privileges operates as a heavy punishment.
The Brehons do not appear, at least after the con-
version of the Irish to Christianity, to have been a
priestly class; but they were always closely allied
to the chief or king of the clan, and could bring
their influence to aid in enforcing their decisions.

There is less evidence of the settlement of quarrels
by arbitration among the German tribes and the
other ancestors of the English people. There was
originally among the Germans what stood for a
rough public administration of justice by those
popular assemblies which seem to have been uni-
versal among those tribes. Our knowledge of their
customs is derived mainly from the Germania of
Tacitus, and he informs us that these assemblies
took cognizance of all judicial matters. There
could have been little uncertainty in the enforce-
ment of the judgments of these bodies. Their
authority was unlimited. Every freeman was bound
to be present, and could be obliged to answer any
complaint. The rude clashing of shields and brand-
ishing of spears in the hands of the judges, which
announced a decision, sufficiently indicated that it
must be unhesitatingly obeyed. It may well be

54 Law : Origin, Growth and Function

imagined that such a body would listen to no trifling
complaints, and that self-help must still be the main
reliance for defence against minor injuries, and also
that the parties to any important dispute who pre-
ferred not to fight would exhaust every means of
pacification, including arbitration by a third person,
before they provoked the rough justice of armed
warriors. The German conquerors of England of
course carried their customs with them, and we find
the Court of the Hundred, the legitimate successor
of the popular assembly, the first well-known judicial
institution 'in the history of England. It there
exchanged its tribal for a territorial jurisdiction, and
until the further integration of society under a more
complete recognition of royal power it was the chief
method for avoiding the violence of self-help by
the substitution of judicial action. But the rude
instrumentality of a popular court constituted of the
great body of freemen, is a very insufficient guaranty
of that peace and order which advancing industrialism
requires. It may punish great offences, but the
minor wrongs will still be left unredressed, except by
private punishment, and while this may moderate
and tend to repress the worst forms of violence, no
general peace can be brought about except by pro-
ducing peace in small localities, and this can be done
only through the instrumentality of a political organ-
isation of localities providing means by which quar-
rels and disturbances may be prevented; in other
words, courts must be brought into existence, and
voluntary arbitration be superseded by the exercise
t of compulsory jurisdiction.

LECTURE III

IN giving a general view of early judicial tribunals,
I can best direct attention to England, partly
because I have never studied this part of the history
of other nations, and partly because the course of
social progress elsewhere has not, as I suppose, in
substance been different from that exhibited in
England. To make this view intelligible we must
glance at the general condition of society at the
time.

The tribal organisation of the Anglo-Saxon con-
querors, such as had obtained in the forests of
Germany, had become superseded, and that equality
in the holding and enjoyment of the land which was
one of the features of that organisation, had passed
away with it. England was a conquered country.
It had been acquired by the skill and valour of
bands of warriors, and a great part of the land,
as happens in all such cases, was awarded to the vic-
tors in proportions assumed to correspond to the
various degrees of rank and worth. The leader of
the host became the king and received the largest
share; next came those of noble birth, or superior
prowess, who composed his immediate retinue, the
thanes or nobles, to whom extensive awards were
made ; and lastly, the common warriors. These, with
the remnants of the vanquished Britons, became the
people of England. At first there were several king-

55

56 Law, Its Origin

doms, but these were eventually consolidated, as a
consequence of war, into one. In place of the tri-
bal organisation a territorial one was established em-
bracing the whole kingdom, and this constituted a
unity of which the king was the head. His power
did not, however, like that of a Roman emperor, ex-
tend to the making of laws. The traditions of the
personal independence of the German tribes still
remained, and no unacceptable authority under the
name of law could be enforced by the king against
the powerful thanes, the great landholders of the
kingdom, without the aid of a standing army such as
he did not possess. Industry, although it had be-
come greatly extended beyond that of a barbarian
tribe, was still very limited, the principal occupation
being that of the cultivation of the land. Of educa-
tion and knowledge there was scarcely any. England
had become Christianised, and with it the author-
ity of the Catholic Church had been extended over the
land, and whatever there was of learning at the time
was mainly to be found among the members of the
priesthood. The actual condition of society was
principally determined by the nature of the owner-
ship of the land. The large proprietors cultivated
large portions, and committed the possession of other
large portions to tenants for cultivation by them, for
rents or other services. Those who had no land, vil-
leins, or slaves, were the tillers of the soil. Any such
occupation of land is essentially feudal in its nature,
although it may lack the precise forms which strict
feudalism exhibited as it developed itself on the con-
tinent. The land-owners were the men of independ-

Growth and Function 57

ence and power. The landless were dependent upon
them for their support, and for nearly everything
else. Their condition approached that of slavery,
and many of them were slaves. All the responsibili-
ties of society devolved upon the landholding class,
and it really ruled whether with or without the instru-
mentality of courts. The large landholder exercised
an authority of a paternal nature over his tenants and
workmen; and when the rigid feudal system became
established, he wielded it through the instrumentality
of a seignorial court, such as the court baron in Eng-
land after the Norman Conquest. Violence and its
accompanying crimes, theft and robbery, such as a
society advancing out of barbarism first seeks to
repress, were committed principally among the lower
classes, and the business of the courts, such as we
find established, consisted in efforts to repress and
punish these. The same condition which has been
found in the early history of all known nations was
exhibited here. As has been observed by Prof.
JMaine, the first step in the public enforcement of law
is the constitution of some sort of a tribunal with
something in the nature of a prp.aedurfiLfqr the pun-
ishment of offences. These rude tribunals we find
established in the earliest history of England, in the
principal divisions of the territory. There was the
Court of the Hundred, and the Court of the County,
and perhaps other petty tribunals. Of the precise
origin of these courts we have no knowledge, and but
little of their actual constitution and proceedings.
We know of no legislation or other public act creat-
ing them. Certain persons, the sheriffs and other

58 Law, Its Origin

officials and the whole body of free landholders, were
required to attend them, and were called the suitors.
They constituted the judges. Over these tribunals
the King exercised some supervision, exerted princi-
pally through the sheriffs, who were his officers.
There was little of purely private litigation, for there
was as yet but a feeble development of civil rights,
and this little mainly arose out of disputes concern-
ing the possession of land. Other business than that
of a judicial nature was transacted at these courts,
such as the making of transfers of land. There were
no professed lawyers attending them, and their pro-
ceedings were extremely rude and simple.

Besides these local tribunals, the King himself held
a court. The head of a State must necessarily be

j£, the fountain of justice, and, after the establishment

The King's Court, as we first find it, was held at no

of courts, the final arbiter in all important disputes.

•\

particular place, but wherever he might be. It was
held by the King himself, or by some high official
deputed by him. It punished any crime committed
in his presence or upon his lands, and it tookTcog-
nisance of all controversies voluntarily submitted to
him. The great nobles and landholders were not
inclined to submit their disputes to the rude local
tribunals held by ignorant men, but the King's Court
possessed an authority and dignity which com-
manded their respect.

No radical change in the constitution of these
courts was effected at once by the Norman Conquest.
The introduction of the feudal system brought with
it the establishment of the baroniaf"cburts, and the

Growth and Function 59

privilege of holding these and courts of the manor
was very often embraced in grants of land by the
King; but the jurisdiction of these was confined to
the particular manors or baronies, and to disputes
between the tenants living upon them relating to the
land and probably to some petty offences .

The important question which concerns us is,
What was the law administered in these tribunals and
where was it to be found ? The answer is very plain. ;<
It was custom. There was as yet no legislation, and
consequently no written jaw. Nor were there any i
judicial precedenls^wEch could be invoked, nor any
treatises of writers of greater or less authority con-
cerning the law. Some of the great ecclesiastics at-
tached to the court may have had some knowledge of
ecclesiastical law and through that, of the^Roman ,
but this could be of but little direct use Tiftne

sposition of the matters brought before tribunals
other than the King's Court. All complaints by one
man against another, whether of a civil or criminal
nature, arose from the fact that something had been
done contrary to the complainant's expectation of what
should have been done; and as every man expects that
others will act according to custom, the complaint
would be in fact, if not in form, that an act contrary
to custom had been committed to the injury of the
complainant. If the party against whom the com-
plaint was made denied the accusation, he necessarily
asserted that what he did was in compliance with
custom. The dispute therefore necessarily turned,
if the act was admitted or established, upon the ques-
tion what the custom was, and these rude tribunals

60 Law, Its Origin

held by the principal and most intelligent men were
well adapted to determine that question. The judges
in these acted in accordance simply with their sense
of what was right, which was necessarily determined
by what they thought to be customary. The great
institution of property already existed, not by
virtue of legislative creation, but it had grown up as
a consequence of the customary action of men long
before the establishment of any court. The goods
and chattels which any man held he was permitted
to hold in peace, because such was the custom, and
because every one knew and felt that if he should
attempt to take them it would cost him a fight, and
an unsuccessful one, inasmuch as all the social forces,
rude as they were, would be found on the side of the
possessor. So also with the security of the person.
Men refrained from attacking and injuring others,be-
cause such was the habit, and an infringement of it
would bring punishment upon the offender. And
the same thing was true of the institution of the fam-
ily and the rights growing out of that. None of these
rights grew originally out of the establishment of
courts, or any other exercise of governmental power ;
on the contrary, courts came into existence for the pur-
pose of affording better protection to them. Custom,
therefore, at this stage of social progress is, as we have
found it to be in the preceding stages, the only law.

This view is confirmed by the legal antiquarians
who have sought to discover by direct inquiry the
original sources of our law. Blackstone says, speak-
ing of the early laws by which society in England was
governed :

Growth and Function 61

" I therefore style these parts of our law leges non scripts,
because their original institution and authority are not set
down in writing, as acts of parliament are, but they receive
their binding power, and the force of laws, by long and im-
memorial usage, and by their universal reception throughout
the kingdom. In like manner as Aulus Gellius defines the jus
non scriptum to be that which is tacito et illiterate hominum
consensu et moribus expressum" 1

He further informs us that

"about the beginning of the eleventh century there were three
principal systems of laws prevailing in different districts, i.
The Mercen-Lage, or Mercian Laws, which were observed in
many of the midland counties, and those bordering upon the
principality of Wales, the retreat of the ancient Britons ; and
therefore probably intermixed with the British or Druidical
customs. 2. The West-Saxon-Lage, or Laws of the West Sax-
ons, which obtained in the counties to the south and west of
the island, from Kent to Devonshire. These were probably
much the same with the Laws of Alfred above mentioned,
being the municipal law of the far most considerable part of
his dominions, and particularly including Berkshire, the seat
of his peculiar residence. 3. The Dane-Lage, or Danish Law,
the very name of which speaks its original and composition.
This was principally maintained in the rest of the midland
counties, and also on the eastern coast, the part most exposed
to the visits of that piratical people." 2

Out of these three laws, Roger Hoveden and Ra-
nulphus Castrensis inform us, King Edward the Con-
fessor extracted one uniform law or digest of laws, to
be observed throughout the whole kingdom, and the
author of an old manuscript chronicle assures us like-
wise that this work was projected and begun by his
grandfather, King Edgar. And, indeed, a general
digest of the same nature has been constantly found

» Bl. Com., bk. i., p. 64 ' ibid., p. 65.

62 Law, Its Origin

expedient, and therefore put in practice by other
great nations, which have been formed from an as-
semblage of little provinces, governed by peculiar
customs."1

i Blackstone further says : ' ' These' ' (the laws or cus-
toms above mentioned) "are the laws which gave rise
and original to that collection of maxims and customs
which is now known by the name of the--common
law. j^ I do not concur in the opinion of Blackstone
that our present common law rests entirely upon

^these ancient customs, but I cite the passages to show
that, in the opinion of a profound student of the his-
tory of our law, these customs were the only law ad-
ministered or known by the courts at the time of their
establishment.

The next period to which I shall call attention is that
embracing the improvement and perfection of Jtegal
tribunals. I need not say that this work of improve-
ment must proceed pari passu with social progress.
That progress is manifested in increasing peace, order,
and industry. Such increase involves new forms of
conduct, new conceptions of right, and demands bet-
ter methods of legal enforcement, and such better
legal methods in turn react upon, improve, and ad-
vance the conceptions of right.

There were several modes in which these tribunals
in England were improved and perfected. The im-
provement, of course began at the top, and the
impulses received there were communicated through-
out the system. In the first place, itinerant justices
came to be appointed by the King, who journeyed

* Roger Hoveden, p. 66. 2 Ibid., p. 67.

Growth and Function

throughout the realm, and took cognisance of the
proceedings in the courts and of the sheriffs and other
officials. These judges were selected from the reti-
nue of officials surrounding the King, and were often
men of considerable learning and skill. They com-
pelled a better performance by the inferior courts of
their functions, and served to give instruction to the
judges holding them. In the next place, the King's
Court itself, held by the most learned men of the time,
some of whom were of really superior abilities, con-
tinually enlarged its sphere of action by assuming a
larger original jurisdiction over controversies and
developed into branches which eventually became
the several courts known in later times as the Ex-
chequer, King's Bench, and Common Pleas. What-
ever was done in the King's Court was everywhere
recognised, followed, and obeyed, and what was called
the custom of the King's Court became everywhere
accepted as law. Again, the advance of society con-
stantly developed new forms of conduct founded upon
new convictions of right, and this created a de-
mand^fointiew^ction by the courts in the way of
relief. At first the forms in which relief was obtained
were very few, and to meet the new demands it was
necessary to devise new forms. This was done in
some instances by ordinances of the King and his
Council, such as the celebrated Assize of Clarendon,
out of which arose several forms of action, the princi-
pal of which was the Assize of Novel Disseisin. This
furnished for one who had been wrongfully ejected
from his lands an easy means of recovering the pos-
session without resort to force. Such improvement

64 Law, Its Origin

was in the nature of legislation. But the principal
meafls by which the administration of justice was
improved was by the device of the issue of new writs
under the authority of the King, through whicrTnew
or more complete judiciaLrelief was obtained. Where
a sense of right had become clearpEEat is, where cus-
tom had become fixed and clear, but there was no
form of action adequate to give effect to it, applica-
tion was made to the royal authority reposed in the
Chancellor. It was there considered, and if it seemed
well founded, that is, if the case was one in which
relief ought to be granted, a writ was devised which
required a court to take cognisance of the case. The
issuance of such a writ was practically tantamount to
a new determination of law, and the complainant
under it received relief upon proof of the facts upon
which it was granted. New writs of this character
were from time to time issued, each constituting some
new cause of action, until the list became exceedingly
numerous, and a case could scarcely arise in which an
injury could not be judicially redressed. The assump-
tion by the Chancellor of judicial functions in the di-
rect cognisance and hearing of controversies for
which no suitable writ at the common law could be
framed completed the system of judicial relief.

There was another very important method of pro-
cedure which has given to English law, in my estima-
tion, a certain measure of superiority. By degrees,
the pleadings in actions became so framed as to lead
to the clear and separate ascertainment of matters of
fact to be tried and determined by a jury. This
enables the judge to consider calmly and without

Growth and Function

distraction what the law is arising upon a given state
of facts, and leads to the creation of an orderly sys-
tem of the Law of Evidence.

In these modes, the principal of which I have indi-
cated, the rude tribunals of England and the system
of procedure in them were improved until they
reached the condition in which we find them there
and in this country three centuries ago. The time
occupied in this improvement was more than three
centuries, but the particular question to which I di-
rect attention is — -What was the law and where was it
to be found, which these tribunals recognised and
enforced during this period? The answer, I appre-
hend, must still be the same. It was custom, and
custom alone. It must have been so, inasmuch as
there was no other source from which the law could
be derived. There was no legislation creating law, or
next to none. An occasional enactment, like the
article in the Great Charter, that no one should be
deprived of his freedom without the judgment of his
peers, may be found ,*but for the great bulk of the law
administered in these tribunals during the period
under consideration, no source or authority can be
found save that of custom. It is indeed the period in
which judicial precedents come to be known and reg-
ularly followed, but what was precedent in the first
instance? It was simply a judicial declaration
custom, and it was follQwe^jaot so much because it
was precedent, but because it was satisfactory evi-
dence of custom. A precedent is but authenticated
custom. It is like the coin of the realm. It bears
the public stamp which evidences its genuineness.

66 Law, Its Origin

We accept a coined piece of gold, not in reality be-
cause it bears the public stamp, but because it is
believed, from the stamp, that it contains a certain
quantity of gold. Its currency would at once be lost
if there were no certainty upon this point. The char-
acteristic in early and rude societies — it is so to a
much less extent in enlightened society — is that cus-
toms, in many respects, are not settled and are in
conflict. A judicial decision determines them so far
as it extends. If it be a correct one — that is, if the
true custom is chosen, (and by true I mean the one
most consistent with the largest usage), it is ac-
cepted, and conduct is regulated accordingly, and the
conflicting practices are discredited and pass away.
This is the reaction of the judicial power upon cus-
tom, one of the great instrumentalities of social pro-
gress. At this stage, therefore, of our investigation,
custom is still the law.

We now come to the last stage in our inquiry con-
cerning what has actually governed the conduct of
men in society. This is the stage of full enlighten-
ment, such as is exhibited in Europe and the United
States at the present day, when the legal tribunals
whose progress I have been tracing have reached a
condition of high development and efficiency. It is
the stage of high development in industry and the
arts of social life. Our immediate point of attention
is the character of these tribunals and the actual
nature of the work they perform. I take up for ex-
amination the courts of England and the United
States, for the reason that we are best acquainted
with them, and because we may be sure that the

Growth and Function 67

condition of courts in other countries, however vary-
ing from that of these, is not fundamentally different.

We find that they are of various sorts, according to
the matters of which they take cognisance, and ac-
cording as they exercise an original or appellate juris-
diction. We find them held by men who have
received a special professional education in the law
and who possess in general the highest character for
ability, learning, and integrity. We find also a class
of lawyers of similar education who attend to the
interests of the suitors seeking the judgment of the
tribunals, and whose business it is to endeavour to
persuade the judges of the rightfulness of the conduct
of their clients in the cases brought before the courts
for adjudication. And we find these courts taking
cognisance both of controversies between individuals
and controversies between individuals and the State.
Their judgments, except when held in suspense by
appeal, stand as the voice of the law, and the execu-
tion of them is enforced, when necessary, by the
physical power of the State. We find among the
instrumentalities employed, both by the judges and
lawyers, to aid them in their duties, many thousands
of volumes of Reports of previous proceedings in the
courts of various jurisdictions, in recent and prior
times, and other thousands of volumes of treatises
professing to expound and make known the law.

Looking at the prodigious amount of matter con-
tained in all these volumes, of what do we find it to
consist? It consists, first and mainly, of statements
of the whole mighty multitude of the transactions,
that is, of the conduct, of men in their relations and

68 Law, Its Origin

dealings with each other, so far as those transactions
have been made the subject of controversy during a
period extending backwards for centuries, and of the
judgments of the courts pronounced thereon; and,
secondly, of the statements of the conduct of men in
their relations, not with each other individually, but
with the general body of society, so far as such
conduct has been challenged for illegality, and of
the judgments thereon. The matter first described
will be recognised as pertaining to what is called
Private Law, and that secondly described as pertaining

—— — n wii ii

to what is

Reserving for the moment, the consideration of the
matter falling under the head of Public Law, and di-
recting our attention to Private Law alone, we find,
upon looking into the reasons given for the particular
judgments pronounced by the courts, that a large
number of them declare that the particular transac-
tions described are like, or substantially like, some
other transactions which had previously engaged the
attention of the courts and had been decided in a
particular way, and the like decision is therefore
made in the particular case under consideration; in
other words, the case is decided by an appeal to known
precedent, or to known precedents. Now the prece-
dent, or precedents, thus invoked as the ground of
decision we know to have been, in the first instance,
the approval and enforcement of some existing cus-
tom of men having no force or authority except from
the fact that it was a custom, and therefore we per-
ceive that the decisions made upon the basis of prece-
dents were really made upon no other basis than that

Growth and Function 69

of authenticated custom. The operation, therefore,
of the tribunals has consisted simply in scrutinising
the features of the transactions and placing them in
some already determined class in which they belonged,
the judgment pronounced being nothing but the legal
consequence of the fact that they belonged to a par-
ticular class.

Each of these precedents is, in effect, an assertion
that the law arising upon a state, or grouping, of facts,
such as that presented by the precedent, is what the
court pronounces it to be. This state of facts has been
determined either by the agreement of the parties, as
where a defendant demurs to the declaration or com-
plaint of the plaintiff, or where a jury has found what
the fact is. These various groupings of fact, thus
presented by the various transactions which have
been drawn into question, we find, on consulting the
digests and treatises in which they are arranged, to
be very numerous, and to embrace examples of most
of the ordinary transactions of life, and as they are
arranged in classified order in such books, it is easy in
most instances of dispute to find a class of cases which
the disputed case so nearly resembles that it is prop-
erly disposed of at once by declaring that the same
rule of law applies to it as that which distinguishes
the class to which it belongs, and, be it observed, all
the particular cases fall under one or the other of two
ultimate classes composed, the one, of things ap-
proved, and the other of things condemned, by the
law. Now we find that cases are continually occur-
ring of transactions which appear to resemble in most
of their features an already established class, but

7° Law, Its Origin

which have some new feature not belonging to such
class, and never before presented, and which, it is
urged before the court, calls for a different disposition.
Let us suppose that an action is brought upon a policy
of marine insurance to recover for the loss of a ship
by a peril of the sea. It is proved that the insured
had private intelligence that there had been very
heavy weather on the seas over which his ship was
sailing, and that he procured his policy without dis-
closing his information. Now I am speaking of pro-
ceedings in court at the present time, but I may
suppose, for the sake of the illustration, that this was
the first occasion upon which the effect of conceal-
ment in the law of insurance arose. If there had
never been any custom that the applicant for insur-
ance of a marine risk disclosed, at the time of the
application, whatever knowledge he had of matters
material to the risk, the defence of concealment
would have been to no purpose, and the underwriters
would have been condemned to pay the loss ; but in
the case supposed, the insurer proves that under-
writers had so long been in the practice of asking
what knowledge the applicant for insurance had
concerning the vessel he wished to insure, that appli-
cants had been in the habit of communicating their
knowledge, whether asked or not, and that all under-
writers acted upon the supposal that they possessed
all the information the applicant had received.
The court leaves the case to the jury with the instruc-
tion that if they find that there was a custom of
disclosing material facts such as alleged, they find a
verdict for the defendant, otherwise for the plaintiff,

Growth and Function 71

and this ruling is approved by a court on appeal, and
a precedent is thus created which will afterwards be
followed. This precedent, it will be observed, created
a new class. The contract contained in the policy
belonged to the class of actions approved by the law,
that is, to the class of contracts, and the obligation
of these rested upon no ground, originally, other than
that of custom. I know of no reason why men were
in the first instance compelled to perform their con-
tracts except that such performance was in accord-
ance with custom. It has often been said by the
most approved writers that custom is one of the
sources of law, and indeed Blackstone views the body
of our unwritten law as being custom, or founded
upon custom; but the sort of custom thus intended
is ancient, custom, reaching so far back that its begin-
ning is not known. Such a limitation of custom in
the making of law seems to me to be without founda-
tion, and the object in giving the last illustration is to
show that present custom, provided it is established,
is as efficient as if it were centuries old. But I
must endeavour to make this still more clear. Let
me take the example of a second succeeding action
in all respects like the one just under notice, except
that the information concealed was derived from
widespread public accounts of a great hurricane.
The underwriter claims exemption from liability on
the ground of concealment, and relies upon the de-
cision made in the former case. The insured insists
that the former case should not be regarded as a
governing precedent, for the reason that this one
presents a new feature which effectually distinguishes

72 Law, Its Origin

and takes it from the class of contracts of insurance
invalid because of concealment, or rather prevents it
from being assigned to that class. He is asked if he
has any evidence to prove that it is not customary to
disclose notorious facts, and he answers that he has
none; that the question has never before arisen.
Here we reach a very interesting point in considering
the question what law is, and where and how it is
found, or, as some say, made — at all events how it
comes to be known. We are at the very bottom of
the matter and considering an operation which is
going on every day before our eyes and subject to the
clearest observation. Our closest attention should
therefore be given to what is really done. The court,
we may suppose on appeal, remarks that the case is
novel, and must be decided upon principle — a vague
expression, but correct enough. It says it can hardly
see how the underwriter can justly claim exemption;
true, the assured failed to disclose his information,
but the only effect of a disclosure would have been
to give the underwriter knowledge of the peculiar
peril, which knowledge he already had derived from
other sources ; he would have taken the risk even if
the disclosure had been made, and therefore he had
not changed his condition in consequence of the dis-
closure. For these reasons the decision is against the
underwriter. Was this case decided by custom?
Some would say it was not, because, avowedly, there
was no precedent, which is authenticated custom, nor
any evidence of actual custom not to make disclosure
of notorious information, and they would declare that
it was a clear case where the judges had made the law

Growth and Function 73

out of their own heads, upon a simple consideration
of whether the failure to disclose was right or wrong.
That the decision was based upon the consideration
whether that action was right or wrong is, in a sense,
true; but whose notion of right and wrong was it? ^

It did not come from on High. It was not sought for
in the Scriptures, or in any book on ethics. The
judges in considering whether the act was right or
wrong applied to it the method universally adopted
by all men ; they judged it by its consequences; they
considered that the underwriter, in all probability,
and therefore presumably, knew of the special peril,
unless he was utterly negligent of his business, which
could not be supposed; that therefore he had lost
nothing by the act, nor in any manner changed his
position. If we went no further it would be manifest
thatcustom decided the case, for to determine whether
ilrvvas right or wrong by the customary modes of deter-
mining right and wrong is to determine it accord -
ing to custom. The court, indeed, declared that its
decision was made upoff pwnciple;J$Lt what is meant
by this? What is the impofroTthis word "princi-
ple"? It has various meanings, but as here em-
ployed it denotes a proposition very widely true, and
the truth of which is universally admitted. The
court in this case judged of the character of the act of
concealment as we all, from the very constitution of
our nature, judge of all conduct, by its consequenc,
It found that the underwriter haHlsuSered no harm
in consequence of the concealment, because he would
have taken the risk, even if the knowledge had been
disclosed, and that it was a principle of law that a

74 Law, Its Origin

man could not fairly complain of the act of another
unless he had suffered injury from it; but this was a
principle of law only because it accorded with the
universal custom of men. In the view of logic the
method by which the conclusion is reached is by first
affirming that one can make complaint of ihe_actio.n
of another only when he is injured by it. This is
dividing all human actions into two classes, those
which injure and those which do not injure others.
The next step is to affirm that this particular act of
concealment did not injure and therefore does not
belong to the class of acts which can be made ground
of complaint. The final proposition is, that an act
by one of the parties to a contract which cannot be
made a ground of complaint by the other cannot be
used by such other to relieve him from the obligation
of the contract. This intellectual process is the em-
ployment of what is called the reason, and has been
sometimes supposed to be peculiar to the law. This
is really why Cicero pronounces the law to be right
reason — recta ratio — existing from eternity, coeval
with the Divine mind, but it belongs no more to the
law than to any other branch of intellectual activity.
It does, indeed, exist from all eternity, or at least
ever since man existed, for it indicates the mode, and
the only mode, in which the human mind acts when
it engages in reasoning. It observes the conse-
quences of acts, and places them in different classes
according to their respective consequences, which con-
sequences are the'quaKtiejs of the acts, This is what
mere children begin" "to "clo, and the mightiest scien-
tific mind does but little else.

Growth and Function 75

I dwell with greater minuteness on the proceed-
ings of courts at the present time ; because the techni-
cal language in which they are conducted tends to
keep out of sight the real grounds upon which they
proceed. It will not be a useless repetition, there-
fore, to employ additional examples to illustrate and
confirm the truth that present custom constitutes
the guide of action in all cases depending upon the
unwritten law. We may take the case in which the
plaintiff seeks to recover a piece of land to which he
claims title. He produces a deed, and the question
is whether the language of that instrument is
sufficient to transfer the title. It therefore turns
upon the interpretation of that instrument. The
court decides in favour of the plaintiff on the
ground that the language employed in the deed,
according to the ordinary use of language, is sufficient
to effect a passage of the title. This is the rule
observed in the interpretation of all written docu-
ments, and thus we perceive that that important
branch of the law is but an enforcement of present
custom. Whenever the question is as to the mean-
ing of writing, custom determines it.

Take the case of an action upon a promissory note
where the defence is that the note was given for a
particular purpose, and was without other considera-
tion, and that the person to whom it was given per-
verted it from the intended purpose to another use,
and that the plaintiff when he acquired it had notice
of the special purpose for which the note was given.
There is much contradictory evidence, let us suppose,
concerning the way in which the plaintiff came into

76 Law, Its Origin

possession of the note, and the judge leaves the case
to the jury with the instruction that if they should
find that the plaintiff came by the note in the ordi-
nary course of business, without notice and for value,
he is entitled to a verdict in his favour. Present
custom is here a turning-point of the case. Again:
a husband defends an action brought against him for
dresses furnished to his wife, on the ground that they
are excessive and extravagant beyond all reason, and
the court leaves the case to the jury with the direc-
tion to find a verdict for the plaintiff, provided they
are of the opinion that the goods furnished were such
as were customarily worn and used by women of a
station in life such as the defendant's wife. Custom
thus supplies the rule by which the liability of the
husband is regulated, and the same is the case with
the liability of an infant.

Take an instance from the largest class of cases
which now engages the attention of courts, that in
which the plaintiff makes a claim grounded on an
assertion of negligence on the part of the defendant,
and it becomes necessary for the court to instruct the
jury concerning the nature of negligence and to lay
down the rule of law for their guidance. Negligence
will be defined as "the omission to do something
which a reasonable man, guided by those considera-
tions which ordinarily regulate the conduct of human
affairs, would do, or doing something which a pru-
dent and reasonable man would not do. MI Now what
is meant by a ' ' reasonable ' ' man ? It is a man whose

1 Alderson, B., in Blythe vs. Birmingham Water Works Co. 8 Exc.,
781.

Growth and Function 77

conduct is guided by what is called reason. But
what is reason in the matter of conduct? It is the
observation, common with all men, of the conse-
quences of conduct and the government of future
conduct in accordance with the teaching of such obser-
vation. What are the "considerations which ordi-
narily regulate the conduct of human affairs" here
spoken of ? ' They are that men should so act in rela-
tion to others as not to justify their displeasure or
resentment, and the fact that ifmen act according to
the fair ex£ectations_pf others^ they wifl not awaken
displeasure, and that if they follow ordinary custom
they will be secure from harm. What a judge really
says to a jury, therefore, when he instructs them in a
negligence case that the defendant was bound to do
all those things ' ' which a reasonable man, guided by
those considerations which ordinarily regulate the
conduct of human affairs, would do, " is that he was
bound to act according to custom. All, laymen as
well as lawyers, would feel if a judge should instruct
a jury that the defendant was bound to take precau-
tions greater, or less, than are usually taken in a case
such as that upon trial, that the law had been incor-
rectly laid down.

The question will arise with those to whom these
views are for the first time presented, how the citizen
is to inform himself of customs which he is required
to obey, and how judges themselves, in the absence of
precedent, find out what custom is. A large part
of the answer is that every one acquires a knowledge
of custom as fast as there is need of having the know-
ledge. A man can hardly live in society without

78 Law, Its Origin

knowing how men act — that is, what custom is. He
knows what to do and what not to do, as well as what
to wear and what not to wear. Custom is of all
.4)1 things the one most universally known. No one
needs to be told that he must not injure the person of
another, or take his property, or violate his engage-
ments when he has induced another to part with some-
thing upon the strength of them.

Of course there are cases, absolutely very numer-
ous, but small when the whole body of human activ-
ity is considered, in which men honestly differ as to
what ought to be done, that is, as to what cus-
tom requires, and other cases, also very numerous, in
which men refuse or neglect to do what they well
know that they ought to do. When a man is hon-
estly ignorant concerning any matter, the natural
recourse is to some person or persons likely to be
better informed than himself. In the earliest and
simplest societies we know anything about, if there
was a dispute between different members, and they
cared to settle it without fighting, they called in
the aid of the oldest and most respected members of
the tribe, who had had the largest experience in life,
and who enjoyed the reputation of taking just views
of things. We do the same thing to-day, The
judges of our courts fill the place occupied by the
seniors of the savage tribe. This is the answer given
y Blackstone. He says, after assigning established
ustom as one of the foundations of the common law
he should have made it the only foundation) :

But here a very natural, and very material, question arises:
how are these customs and maxims to be known, and by

Growth and Function

79

whom is their validity to be determined? The answer is, by
the judges in the several courts of justice. They are the
depositaries of the laws, the living oracles, who must decide
in all cases of doubt, and who are bound by an oath to decide
according to the law of the land. Their knowledge of that
law is derived from experience and study; from the 'viginti
annorum lucubrationes* which Fortescue mentions; and from
being long personally accustomed to the judicial decisions of
their predecessors.1

But the law needs not only to be declared, but,
where necessary, it is to be enforced, and part of the
constitution of a court is the presence of one of its
own officers or an officer of the law, the sheriff, who
may command the whole power of the State to execute
the mandate of the court. The judge to whom is I
intrusted the office of declaring what custom is, finds
out the fact, for the most part, in the same way that
other men do, by his senses; but this means is supple-
mented with him by his knowledge of the work of his
predecessors. What makes the accomplished law-
yer more fit than other men for the work of ascer-
taining and declaring custom, is the fact that custom
is a government of conduct according to its conse-
quences. This is the proper study of the lawyer, if he
makes the best use of his time. The reports, which
are the books containing all the disputed cases of
conduct in the past, and the affairs of the present day,
are supposed to be thoroughly known by him. The
judge permits no witness to be called to enlighten
him as to what custom is (I do not speak of particular
customs) . He is required to take judicial notice of it ;

1 Blackstone, book i., p. 69.

8o Law, Its Origin

but the word judicial might be omitted, for every one
in the ordinary business of life is required to take the
same notice at his peril. And here we have another
proof that custom is law, for how could men be justly
to nhfiy mlfts which they had not

means of knowing?
_ ^ ^ "^

T3ut if the law laid down by the enlightened tribu-
nals of the present day be nothing but custom, what,
it may be asked, is meant when courts declare cer-
tain customs bad, and disallow them? It is true that
language like this is often employed, but the phrase-
ology is misleading. There are particular customs,
that is, customs prevailing in certain localities, or in
certain branches of business. These are allowed,
when they are allowed at all, for the same reason that
custom generally is taken to be the law, that is, be-
cause the particular conduct in question has been
governed by it. But the question always arises
whether the particular custom relied upon finds a
place in the large category of universal custom. If
it be found to have any element taking it out of that
category, it is not really an instance of custom, but
is a departure from custom. It is not enough to
make conduct customary that the instances of it are
frequent and numerous. Thefts are extremely fre-
quent, but they are, like all crimes, departures from
custom — mere bad practices which true custom con-
demns. Let it be supposed that a milkman brings
an action against his customer for the price of milk
furnished to him, and the customer asserts and proves
as a defence to the action, in whole or in part, that
the milk was watered. The milkman seeks to meet

Growth and Function 81

this defence by asking to be allowed to prove that
milkmen generally water their milk, and that every
one knows, or has reason to suspect, such to be the
custom. If the judge should ask him if he proposed
to prove that he and all other milkmen openly
watered their milk before the eyes of their customers,
he could scarcely answer in the affirmative. The act
was done in secret with the view of concealing it from
customers. Now the sale of milk is but an instance
of a contract, and the general custom is that con-
tracts are made and performed openly and in good
faith. The distinguishing characteristic of custom-
ary conduct is that it is what all parties affected by it
mi^t^airl^^fect, and this at once stamps the water-
ing of milk as a violation of custom — a mere bad prac-
tice which might with propriety be treated" as a crime.

LECTURE IV.

n

CONTINUING our scrutiny of this great history
^-* of the treatment of human conduct by the
enlightened judicial tribunals, we find that transac-
tions have been brought before them which are in all
substantial respects the same with some one or more
previously decided, and yet one of the parties is not
satisfied with that decision, and insists it was wrong,
and it appears from the discussions that the previous
decisions have not been acquiesced in generally, and
that transactions of various kinds are continually
occurring not in harmony with the decisions— that is,
that human conduct does not actually govern itself
in accordance with them. In such cases we find
that the courts have re-examined the prior decision,
or decisions, which had thus been questioned, and
have sometimes declared that they were erroneous
and would no longer be followed, and if we look
closely to see in what the confessed error consisted we
shall find that it was in a wrong classification of the
transaction adjudicated upon — that is to say, that it
was classified as being against the approved customs
of society when in fact it was, upon a just view, in ac-
cordance with them, or as being in accordance
with them when it was in fact against them. Here
we observe two things: first, that human conduct

82

Law: Origin, Growth, and Function 83

follows its own inherent laws uncontrolled, except in
minor matters, even by the deliberate judgments of
courts, and that if some piece of conduct really in
accordance with custom is declared by the courts to
be otherwise, society will, if the matter be one of
grave importance, pursue its own course, regardless
of the decision. It will follow the fundamental law
which governs conduct, namely, that custom is the
controlling power. In the next place, we sEall ob-
serve that the courts themselves recognise, tacitly,
at least, this fact, and when they perceive that a rule
of law as laid down by them is not generally ac- ',
cepted, that is, that it fails to control conduct, they \
change the rule. Now, the real thing to which the
courts look for a guide in such emergencies is the
actual customs of society. If they see that conduct
which they once pronounced wrong continues to be
repeated, not in exceptional instances merely, but
generally, they see that such conduct is one of the
ways of society; that the business of life could not be
conducted in the way in which it actually is conducted
except upon the assumption that such conduct is
right; in other words, that it is actually in accordance
with custom, and that their previous classification of
it as otherwise was erroneous. We have here a fur-
ther proof that a judicial precedent is nothing but
a supposed custom authenticated by the public of-
ficial stamp ; that such stamp may be placed errone-
ously, and that in such cases it loses its power and
authority. If a base coin were, by error, to receive
the public stamp declaring it to contain so much gold,
that stamp would be ineffectual to give it value after

J

84 Law, Its Origin

|the truth had been discovered. A judicial precedent
I is not law per se, but evidence of it only. The real
law is custom.

I must emphasise a principal feature observable
throughout the proceedings of judicial tribunals in
the enlightened stage under consideration. This is
that they are engaged in a conscious effort to admin-
ister true justice; and that they seek to accomplish
this by studying the features of the particular trans-
actions brought before them and assigning them to
one or another of the vast multitudes of classes or
sub-classes which make up the structure of the law,
or adding to that structure by forming new classes, or
correcting it by a re-formation of previous classifica-
tions. This is the same kind of work which is per-
formed in astronomy, geology, ornithology, and all
,-Hiother sciences. The law thus appears in its true
character as an Inductive Science. The difference

between it and other sciences is that the classifica-
tions of the latter are subsidiary to the purpose of
arranging knowledge into orderly form, with a view
to its better comprehension and to its further in-
crease; while in the law the classifications are made,
not for the mere purposes of scientific knowledge, but
to compel men to do or to suffer what it is right that
they should do or suffer. This classification, how-
ever, made for the practical purposes of life, is really,
at the same time, the true one for scientific purposes.
I must also observe here that Law in this, its scien-
tific aspect, embraces only that part of law which
; consists of the enforced customs of society — that is,
unwritten law, and that the operation of this law is

Growth and Function 85

in large measure, though not wholly, confined to the
province of Private Law, that is, the law which gov-
erns the ordinary private transactions of men with
each other. It is the law for which the Roman word
jus is the best expression. And it is well to keep
constantly in mind that this law, being tantamount;
to the customs enforced by society, is an existing fact,

or body of facts, and that the cailrfg ^° ™+. mp^ it,

or pretend to make it, bi^Lto jgff/i .p.n^ ^yr^/pr.^ it}
acting upon the true assumption that it already
exists.

Before passing from the evidences which show that
in all stages of social progress the private law is iden-
tical with custom, I must call attention to a striking
feature observable in the condition of a subject
nation which has been conquered by another posses-
sing a different law. It may be the desire of the
conquering nation to supplant the law of the people
which it has subdued by the introduction of its own,
and yet no instance can be found in which this has
been done. The Romans did not abrogate the exist-
ing law of the numerous nations over whom they
imposed their political dominion. The Western
Barbarians did not uproot the law they found pre-
vailing in the Roman provinces which fell under
their sway. The German conquerors of England
did, indeed, nearly destroy the ancient laws of the
Britons, but not until they had as nearly extermin-
ated the Britons themselves. The United States
adopted and enforced in their various conquests in
Mexico, Porto Rico, and the Philippine Islands, the
laws and customs of the native peoples. An excep-

86 Law, Its Origin

tion is to be made in respect to such laws of the con-
quered nations as are in their nature inconsistent
with the maintenance of the new Sovereignty and to
such laws as the conqueror may find it necessary to
impose in order to maintain his supremacy; but
these are public laws. The private relations of the
conquered people with each other remain subject to
the same government as before. Accordingly it is a
principle of universal public law, everywhere recog-
nised by courts, that in the case of the conquest of one
nation by another the laws of the conquered nation
remain in force, except so far as they are inconsist-
ent with the supremacy of the conquering nation,
and so far as the conquering nation has positively
substituted different rules in their place. This is a
significant proof that the private law is self-existent
and irrepealable in custom.

I now come to consider another feature observable
in the proceedings of judicial tribunals still under
consideration, and which forms a large and interest-
ing figure in those proceedings. We find many trans-
actions considered and adjudicated upon by the
courts in which their action is determined, not by
reference, in the first instance at least, to preced-
ent or to custom, but by direct reference to what the
legislative power has, by some written enactment,
commanded or prohibited to be done, and we find,
consequently, that human conduct is governed, to
some extent, not by custom, but by the expressed
will of the State — that is, by Legislation. It is obvi-
ous that these two methods are radically different.
When courts apply the law founded upon custom,

Growth and Function 87

they do not make rules. They find rules already ex-
isting, unconsciously made by society, the product, as
it were, of its life; but the written laws which they
enforce are rules consciously made by men clothed with
the legislative power.\ I have hitherto purposely
endeavoured to leave Cegislation out of view in order
that we might contemplate custom and its opera-
tion upon human conduct, uninfluenced by the con-
sideration of other causes affecting it. I did, indeed,
find it necessary to treat briefly of the first employ-
ments of writing in the making of laws, in order to
show that the omnipotence of custom as the guide of
conduct was not to be imputed to ignorance of the art
of writing, and for that purpose spoke with some detail
of the early employment of writing among the Greeks
and Romans, but now that we find in scrutinising the
proceedings of courts in enlightened society that there
is a much larger appearance of written or enacted law,
some greater and closer attention must be given to it.
What the real nature of Legislation is, beyond the
fact that it is, in form, in writing, and purports to
express the command of the sovereign power, and how
far it is wise or expedient that we should attempt to
govern conduct through its instrumentality, are in-
teresting questions which I shall hereafter discuss.
Thus far I have been confining my attention to the
causes which, in point of fact, have governed and do
govern conduct. I am still prosecuting that inquiry ,
and now come to consider to what extent Legislation
has, in different places and in different ages, been,
as a matter of fact, the source of rules for the govern-
ment of conduct.

88 Law, Its Origin

We found, in considering the first employments of
writing in the making of laws of which history gives
us any considerable knowledge, namely, the laws of
Solon in Athens and the XII Tables in Rome, that
these acts of legislation were not intended to super-
sede the previous customary laws of those States, but
to furnish better methods of executing those laws,
and to effect an adjustment of internal political dis-
putes which had arisen between different classes of
citizens; in other words, that the object, substance,
and nature of those written laws was not juristic, but
political. I shall briefly glance at the subsequent
employment of writing for the purpose of law-making
in the early history of different countries down to and
including the present time.

The first of these subsequent employments is that
presented by what are called the Codes of the Bar-
barians. They were promulgated at various times
during a long period covering parts of the fifth and
sixth centuries of the Christian era; but the occas-
ions which produced them, and the purposes they
were designed to serve, and their contents, are so far
similar as to justify their reference to a single class.
In order to gain even the most general knowledge of
the nature of these laws, which indeed is all that
is requisite for our present purpose, it is neces-
sary to glance at the political and social condition
of Western Europe at the times when they were
promulgated The martial valour of the Romans
and their ambition for extensive empire had, at the
time of Augustus, brought under their dominion
the greater part of the known world. His advice

Growth and Function 89

to his countrymen to check the career of conquest
and to consolidate the vast possessions they had won,
was accepted by them, and they displayed a genius
in the arts of pacification quite as conspicuous as
their renown in war. They sent out colonists,
especially through Italy, Gaul, and Spain, who
mingled with the native inhabitants, carried with
them habits of industry, gradually induced the na-
tives to devote themselves to agriculture, the arts,
and commerce, and gave them an improved admin-
istration of justice and better local governments.
Moreover, they did not attempt the impossible task
of violently substituting their own laws in place of
the native customs, but allowed the latter to be in
large measure retained. They sought in other ways
to attach their new subjects to their authority, com-
mitted to their hands many of the functions of local
government, encouraged them to enlist in the Roman
armies, and finally bestowed upon them the proud
title of Roman citizens, with all the privileges per-
taining to it. There was, however, at all times, a
gentle pressure for the adoption of the Roman law,
and its vastly superior adaptation to the purposes
of a people seeking to acquire the arts and blessings
of civilisation served to facilitate its reception.

Under these influences the Roman provinces,
especially in Europe, made in the course of five cen-
turies from the time of their subjugation great ad-
vances in civilisation, wealth, and knowledge. Hun-
dreds of cities, many of them large and populous,
arose, great accumulations of wealth were gathered
and the magnificence of the imperial city was

90 Law, Its Origin

emulated in baths, temples, and forums. Schools
were established, and some of the great names
in the classic literature of Rome were those of pro-
vincials. Seneca, for instance, was a Spaniard.

But a great peril at all times threatened the secur-
ity of these flourishing provinces. The vast regions
lying on the North and East were inhabited by rude
barbarians, warlike and adventurous, ready to en-
gage in any arduous enterprise promising the rewards
of plunder and spoil. To repel the inroads of these
terrible warriors the provinces had no military
strength of their own. They were not permitted to
indulge the military spirit and to raise and maintain
armies under their own control with which to resist
invasion. There was too much danger that these
might be employed against the imperial authority.
Rome herself undertook to defend her provinces, and
this task was for centuries efficiently performed by
her disciplined legions stationed along the whole
frontier. Upon the fall of the Empire this safeguard
melted away, and the barrier being removed, the
barbarians broke in upon all sides. There being no
military power to expel them, and no inducement to
voluntary return, they gave terms to the vanquished
inhabitants, established themselves in permanent
occupancy of the territories they had conquered, and
with no further enemies to subdue, they gradually
settled into peaceful pursuits, together with the
peoples they had conquered, and began their march
along the pathway of civilisation and progress
which those peoples had before trodden after their
subjugation by the Romans.

Growth and Function 91

And now there arose some anomalous legal con-
ditions. Similar ones may have been exhibited
before and since, when one nation has been subdued
by another, but never, in known history, upon a
scale so conspicuous. Here were the original inhab-
itants of the conquered provinces living under a
modified Roman law, which tolerated the existence,
to some extent, of the prior customs of the provinces.
Over them came the barbarians with their rude
tribal organisations and customs. They could not,
if they would, abrogate the law under which the
people they had conquered were living. This law
could not be at once abrogated without destroying
the customs which it represented and enforced.
As we have already seen, customs can not be de-
stroyed at a stroke. To change them is a slow and
gradual work. Nor, probably, did the barbarians
desire wholly to abrogate them. They wished to make
friends, not enemies, of the people among whom
they intended to dwell permanently, and in no way
could they better effect this purpose than by suffering
them, so far as possible, to retain their laws and
customs. Still less could they renounce their own
laws. The attachment of their own followers to
their customs was as strong as that of the native
people to theirs. Necessity, as well as policy, pointed
to the expedient of allowing both systems to stand
side by side to such an extent as to permit the con-
quered populations to have the benefit of their own
laws and customs, so far as concerned transactions
between themselves, while the barbarians might
assert theirs wherever their interests and supremacy

9 2 Law, Its Origin

were concerned. This expedient was adopted, or,
rather, it came about naturally, of necessity; but
to carry it into better effect it was needful to pro-
mulgate the laws of the Barbarians in order that the
conquered peoples might be apprised of what they
were to obey when the two systems might happen to
come into conflict. The political power would be
in the hands of the Barbarians, and through this
they would be enabled to assert the supremacy of
their own customs whenever occasion might require.
Prior to this time and before they started upon their
career of conquest, they were governed by the un-
written rules of conduct; their affairs were dis-
cussed and settled in councils composed of the free-
men of the tribes. Their kings were elected at these,
and at these were determined, by the rude clashing
of their weapons, the questions of war and peace,
and a rude justice was administered. The purpose
of the promulgation of the Barbarian Codes was to
settle the conflict thus arising between different
systems of custom, and they gave rise to the anomaly
of two systems of law co-existing with each other,
one territorial in extent, and applicable to the native
people inhabiting the conquered territory ; the other,
personal, applicable to the Barbarians, and carried
with them wherever they went.

Among these Barbarian Laws, and the most
important, was the Code of the Salian Franks, a
powerful confederacy of German tribes, who, with
their neighbours, the Ripuarian Franks, had re-
duced substantially the whole of Gaul to subjection
and inaugurated the first dynasty, the Merovingian,

Growth and Function 93

of the French kings. Others were the Codes of
the Burgundians, of the Ostrogoths, the Visigoths,
and the Alemanni, and there were still others.

The conflict between these codes and the Roman
law of the provinces did not prove so embarrassing as
might be supposed. In the case of the rudest of the
Barbarians, the Franks and the Burgundians, the
characteristics of the provisions were that they re-
lated very largely to political organisations and to
the crimes of violence. They fixed the weregild, or
sum required to be paid by a man to the kin of one
whom he had slain, and corresponding sums for
robbery and other injuries. Among violent and war-
like people having no industries, all that is needed
is the repression of those offences which disturb the
internal peace of the tribe. They have no occasion
for resorting to a cultivated jurisprudence, and the
Barbarians might well, having the military and
political supremacy, insist upon the adoption of
these simple provisions for offences and leave the
regulation of the other conduct of the peaceful native
inhabitants to that system which was already per-
forming that function.

The aspect, therefore, which these conquered
countries exhibited was that of rude barbarians
living among peaceful inhabitants, and each under
laws of their own, growing out of, and fitted to, their
respective characteristics and with growing internal
harmony.

In the country subject to the Franks, the Salic Law was
established for the Franks, and the Theodosian Code for the
Romans. In that subject to the Visigoths a compilement of

94 Law, Its Origin

the Theodosian Code, made by order of Alaric, regulated dis-
putes among the Romans ; and the national customs, which
Euric caused to be reduced to writing, determined those
among the Visigoths.1

The pride of the conquerors was sufficiently gratified
by the privilege which they enjoyed, like the posterity
of Mahomet, of carrying their laws with them wherever
they went, whereas the laws of the provinces re-
mained local and territorial. The two systems were
left to compete with each other, and the result of
the competition was not doubtful. The Barbarians
themselves, gradually changing their habits from
those of warlike and predatory tribes to those of peace-
ful and industrious citizens, would soon find that their
rude laws contained no rules applicable to their
changed condition, while the Roman law of the pro-
vinces, penetrated by the spirit of a jurisprudence built
up by a thousand years of civilisation, embraced pro-
visions which would justly regulate every transaction
of life. It was inevitable that in these subjugated
countries the original inhabitants, while receiving
from their conquerors a new infusion of independent
and martial feeling, would in their turn subdue the
ferocity of their masters, and allure them into the
peaceful paths of industrial advancement. As this
change progressed, the rude codes of the Barbarians
would silently sink into desuetude and the cultivated
jurisprudence of Rome re-assert its supremacy.

This cursory review of the circumstances attending
the promulgation of the Barbarian Codes enables us
to perceive the purpose of this employment of

i Montesquieu, Esprit des Lois, vol. ii., book xxviii., ch. iv.

Growth and Function 95

writing in the framing of laws, and we immediately
see that here also it was not juristic but political.
It was political in the main, in both the instances
we have before considered, those of Athens and
Rome; but there it was for the purpose of re-organ-
ising the political arrangements in order to reconcile
internal conflicts between different classes of long
established societies, and inasmuch as those con-
flicts in part arose from dissatisfaction with the
public administration of justice, the written Code,
especially in Rome, reduced to writing some of the
ordinary law. But the case was otherwise with the
Barbarian Codes. There were no internal dissen-
sions within the bodies of the tribes. Such internal
peace as barbarians can exhibit prevailed. The
motive was in great part to preserve for triumphant
bands of savage warriors, in the midst of peaceful
provinces which they had subdued, their supremacy
over the vanquished by retaining those prerogatives
and privileges which are becoming to conquerors.
They were not unwilling that the provincials should
preserve, for the regulation of their own affairs, the
laws and usages which then prevailed among them.
In some instances, indeed, the Barbarians caused
some brief codes of Roman Law to be prepared for
their use; but it was not their purpose to subject
themselves to such laws and usages. To have a
personal law which a man can claim wherever he
goes is a most conspicuous mark of superiority, and
this prerogative the conquerors chose to retain. A
permanent memorial which could at any time be
appealed to was needed in order to acquaint the

96 Law, Its Origin

vanquished with the conditions which their masters
chose to impose. This apparently anomalous exist-
ence of a personal law with a different territorial
system is well sketched by Messrs. Pollock and
Maitland in their History of English Law :

As the Prankish realm expanded, there expanded with it a
wonderful "system of personal laws." It was a system of
racial laws. The Lex Salica, for instance, was not the law of a
district; it was the law of a race. The Swabian, wherever
he might be, lived under his Alamannic, or as the expressive
phrase tells us, he lived Alamannic law (legem vivere}. So
Roman law was the law of the Romani. In a famous, if ex-
aggerated, sentence Bishop Agobard of Lyons has said that
often five men would be walking or sitting together and each
of them would own a different law.1

Turning now to Great Britain, we find the first
known instances of the employment of writing
for the purposes of legislation to be of a somewhat
different character. The original inhabitants of the
island were Celts. The Roman conquest, although
followed by four centuries of occupation, is but an
episode in the history of Great Britain. The occu-
pation was confined, for the most part, to fortified
places and their neighbourhood, while the main
bulk of the territory was still in the hands of the
natives. The recall of the Roman legions at the
downfall of the empire was the signal for the re-
assertion by the natives of their power. The Roman
inhabitants, conscious of their inability to withstand
this pressure, resorted to the dangerous expedient
of calling outside Barbarians to their aid. Those

i Pollock and Maitland, (1899) vol. i., p. 13.

Growth and Function 97

most available for this purpose were bands of free-
booters from the promontory of Jutland who were
harrying the coasts of England and France. They
defeated the British Barbarians, and then turned
their arms against the Romans. Fresh bands from
their native Jutland and from the neighbouring
Saxons poured in to join them, and wars ensued
which ended in the extermination of both Roman
and Briton, and thenceforth the Angles and the
Saxons were to be the undisputed masters of English
soil. They brought with them their customs and
usages, which bore a resemblance to those of the
Barbarians who made themselves masters of the
Roman provinces upon the continent. These were
personal independence and liberty, and popular
assemblies in which kings were elected for their
valour to act as military chieftains, and in which
justice and other affairs were administered. As the
tribes pressed in upon the Roman provinces on the
continent their customs and usages were left to
compete with the very different ones which had
grown up under Roman dominion, and which con-
stituted a law substantially Roman. We have
already observed that as the Barbarians became
softened and civilised by contact with the greatly
superior numbers of the conquered provincials, and
by degrees came to cultivate the arts and industries
of peace, they required a more cultivated system of
law, and they found it already at hand in the Roman-
ised jurisprudence of the peoples whose masters they
had become. They were as nations swallowed up
in the bosom of the old populations, and their cus-

7

98 Law, Its Origin

toms and laws, like their language, became gradually
Romanised. The establishment of the Holy Roman
Empire of Charlemagne, united with the growing
papal authority, gave another impulse to this tend-
ency, which was again caught up in later times by
the revised study of the Roman law consequent upon
the discovery of the Pandects at Amalphi, and thus
in the end all the Western nations of the continent
adopted the classic Roman law as the basis of their
jurisprudence. And with their juridical system
went also the political. The freedom and inde-
pendence of the German tribes were lost in imperial-
ism, and monarchs became absolute.

The course of legal development proceeded other-
wise in Great Britain. The German conquerors,
having nearly exterminated both the Roman and
the native populations, their customs and usages
had no competition to struggle against, and were
left to their own natural development. The enlarged
territorial dominion, the increasing population, and
foreign wars demanded more stability of rule, and
the elected chieftain gave way to the sovereign by
inheritance; but his authority was always limited
in some form by popular safeguards, and the historic
origin of our own liberties may be thus traced to
our German ancestors.

It would be in vain for us to seek among the origi-
nals of English law for any instance of the employ-
ment of writing for the purpose of law-making at
any time from the completion of the Saxon conquest,
near the close of the sixth century, to the Great
Charter of King John in the thirteenth, corresponding

Growth and Function 99

in significance or importance with the legislation of
Solon in Athens, the Twelve Tables of the Roman
Law, or even the Barbarian Codes. The genius of
Alfred, patriot, soldier, statesman, and scholar,
fitted him indeed for the task of lawgiver, had such
a mission been acceptable to the people over whom
he ruled. Our legal antiquarians have indeed be-
stowed upon him the appellation, borrowed from im-
perial Roman jurisprudence, of legum Anglicarum
conditor; but his title to this distinction rests, not
upon any laws written or enacted by his authority,
but upon a compilation, made under his direction, of
certain rules and customs obeyed and enforced in
the various parts of England in his time, and vari-
ously styled Alfred's Laws, or Dome Book, and
which has been unfortunately lost.1 Permanent
kingship was a new experience with Saxon peoples,
and though necessary for their defence against the
hostile elements to which they were opposed in
their new settlements, did not include in their minds
the prerogative of dictating laws. For the purposes
of legislation there must be™ sovereign whose author-
ity to enforce his laws is undisputed throughout his
realm, or an assembly regularly constituted and rec-
ognised as really representative. Neither of those
conditions existed in England under the Saxon kings,
and though numerous documents have been pre-
served purporting to be laws, or dooms, of the Saxons,
they consist chiefly of attempts to give certainty to
the sums of money, payable by way of voluntary
redress for murder and other injuries. They have

i Bl. Com , bk. i., p. 65,

TOO Law, Its Origin

never been appealed to in subsequent times as con-
stituting part of the law of England, nor have they
been incorporated into any of the authoritative pub-
lications of statute law. The authorities seem to
agree that the Great Charter constitutes the first
appearance of genuine written law in the juridical
history of England. Says Professor Lee in his recent
work on Historical Jurisprudence:

It is with the Great Charter of 1215 that the distinction
between written and unwritten law became certain and
accepted. Before that date the enactments of national
councils, however important they might be, were not pre-
served as statutes of the realm. They belonged to the jus
non scriptum.1

Messrs. Pollock and Maitland, in their learned and
elaborate work, express the same view: "That
charter takes its place as the first chapter of the en-
acted law2"; and Mr. Green, in his History of the
English People, says:

It is in this way that the Great Charter marks the transition
from the age of traditional rights, preserved in the nation's
memory and officially declared by the Primate, to the age
of written legislation, of Parliaments and Statutes, which
was soon to come.3

And yet the Great Charter when rightly considered,
in the light of the occasion and the motive which led
to it, was not a reduction of customary to written
law for the sake of the supposed advantages possessed
by the latter as law. King John had been for years
playing the part of an absolute monarch, and setting

1 Historical Jurisprudence p. 479,

2 Vol. i., p. 78.

3 Vol i. p. 245

Growth and Function 101

at defiance every limit upon the royal prerogative.
His oppressions, while weighing heavily upon the
body of the people, were felt more keenly by the
barons, and had at length brought them into open
war with their sovereign. He was obliged to yield,
and the Great Charter was simply the treaty which
he was compelled to sign in order to conclude the
war. 1 It was the record of the conditions under which
he was to be permitted to continue to wear the crown.
The prior law had not in any manner failed because it
was not in writing, but because the king himself had
set it at defiance. It is, indeed, a proof, if proof were
needed, that a written contract embracing many
provisions is superior, in form and efficacy, to a
verbal one, but it proves nothing more.

I have yet to refer to the most significant and
instructive instance of the employment of writing
for the purpose of legislation. I mean that of the
law of the Church of Rome, what is commonly called
the Canon Law. The Roman Catholic Church,
originally a small religious society, by degrees, in
the face of persecution, had extended itself through-
out the Roman Empire until in the reign of Con-
stantine it was acknowledged and accepted by that
empire as the only authorised spiritual power, and
prior to the Reformation the whole European world
had accepted its faith and acknowledged its author-
ity. Its organisation became more and more elabo-
rate, refined, and complete as its numbers and power
increased. The fundamental conception upon which
it was founded was that of a hierarchy instituted by

»Stubbs, Con. Hist., vol. ii., p. 2.

102 Law, Its Origin

Christ himself through the apostle Peter, and main-
tained by his successors, the Bishops of Rome, as
the visible vice-regents of the Almighty upon earth.
The society constituted by it is not limited by the
boundaries of nations, but embraces the whole body
of believers, wherever found. Absolute obedience
is due to it by every member, from the king to the
peasant, and even by the corporate nationalities
which profess the Catholic faith. It claims an em-
pire not only over the minds and consciences, but
also over the actions of men, and if it has failed to
assert authority over all their actions it is because
reason or policy has advised the abstention. It need
not be said that pretensions like these can have no
limitation except such as are self-imposed. The
Divine authority must necessarily be absolute and
supreme over all merely human power. These
claims on the part of the Church have never been
wholly acceded to in any nation except the Papal
States of Italy before the abrogation of the temporal
power of the Popes ; but they were at an early period
admitted to a considerable extent. The conduct of
the clergy, the regulation of church property, the
administration of the personal property of deced-
ents, marriage and divorce, the punishment of
heresy, etc., were conceded to the jurisdiction of the
spiritual courts, and many traces of this concession
are still to be found in the jurisprudence of England
and even of the United States. The legislative au-
thority included within these claims is vested in the
supreme pontiff and the general councils of the
Church, and by its exercise from time to time, a

Growth and Function 103

vast body of law has been created and reduced to a
highly refined and logical system. The Code, the
Novels, and the Pandects of Justinian, constituting
the Corpus Juris Civilis, are paralleled by the Decre-
tum, the Decretals, and the Extravagantes, con-
stituting the Corpus Juris Canonici. Its commands
are enforced by many weapons drawn from the
spiritual armoury, of which excommunication is the
most effective, and when these have failed, the
temporal power has often lent its aid. This law,
assuming to be an expression of the will of the
Almighty, communicated through his vice-regent on
earth, is embodied in writing, and is7 in theory,
the most perfect exemplification of written law.
Not being of human origin it cannot be created by
custom, though human custom may be, and often
is, recognised and sanctioned in its administration.
If it were universally and completely enforced in
harmony with its pretensions, it would entirely
answer to Austin's definition of law, as being a
command addressed by a superior to an inferior.
The authors, however, whose labours built up the
Canon Law, being ecclesiastics, were, in general,
the most learned persons of their times, and their
system exhibits the first efforts, subsequent to the
downfall of the Roman Empire, to apply scientific
principles to the composition of law, and the civil
law of the Middle Ages is largely indebted to the
Church for many of its improvements. This bene-
ficial influence proceeded not only from the text
of the Canon Law, but also from the direct work
of the ecclesiastics who were frequently employed

104 Law, Its Origin

as ministers of State and members of the judicial
tribunals.

But in answer to the question how far this system
of written law has at any time come to govern the
actual conduct of men in their transactions with
each other and in their relations to the State, we
must say that it has had comparatively little direct
force or influence proprio vigore; and so far as it
has had any authority, it has been derived from the
State and dependent upon the State for its con-
tinuance. It has really been efficacious in dealing
with civil concerns only so far as it has recognised
and enforced the actual customs of civil society.
The great Churchmen who in the Middle Ages and
later so frequently filled the great offices of State
were quite as skilful in administering temporal as
they were spiritual affairs, and in the performance
of judicial duties they conferred the greatest bene-
fit by applying to the enforcement of the customs
of life, the order, system, and methods which they
had learned in the Roman and Canon Law.

In considering the instances of the employment of
writing in the making of laws, I have thus far
referred to those only (excepting the Canon Law)
occurring in early stages of social development, and
only the most notable. There are, however, many
others to be found before either legislation or
the law of custom and precedent had reached what
may be called the scientific stage, and some brief
attention to these will be instructive. There were
quite a number of statutes, or ordinances in the
nature of statutes, enacted in England, some of

Growth and Function 105

them prior even to the Great Charter, but of many
of them no permanent memorial has been preserved,
a fact indicating that they were not of permanent
importance. Such of them as have been preserved
will be found to be in the main not attempts to re-
duce the customary law to writing,'or to directly affect
the ordinary- transactions of men, but to bring
about some political object such as the correction
of the mode of judicial procedure, relief from royal
oppressions, or the defeat of the pretensions of the
Church. Among these was the Charter of the Forest
(1217), one of the chief measures designed to afford
relief against the abuses and oppressions of the
Forest laws; also what are called the Constitutions
of Clarendon (1164) from the name of the place
where they were enacted. They are thus described
by Bishop Stubbs in his Constitutional History:

The Constitutions of Clarendon are sixteen in number, and
purport to be, as the history of their production shows them
to have been, a report of the usages of Henry I. on the dis-
puted points. They concern questions of advowsons and
presentation, churches in the king's gift, the trial of clerks,
the security to be taken of the excommunicated, the trial of
laymen for spiritual offences, the excommunication of tenants-
in-chief, the licence of the clergy to go abroad, ecclesiastical
appeals, which are not to go further than the archbishop with-
out the consent of the king ; questions of the title to ecclesias-
tical estates, the baronial duties of the prelates, the election
to bishoprics and abbacies, the right of the king to the goods
of felons deposited under the protection of the Church, and
the ordination of villeins.1

And he further describes them as being "a part of

, Constitutional History, vol. i., p. 502.

io6 Law, Its Origin

a great scheme of administrative reform, by which
the debatable ground between the spiritual and
temporal powers can be brought within the reach
of common justice and the lawlessness arising from
professional jealousies abolished."1

The Assize of Clarendon, sometimes called the
Great Assize (1166), was an enactment of which the
principal feature was an improvement of judicial
procedure in the case of criminals, and is a part of
the same scheme of reform attempted by Henry to
which the Constitutions of Clarendon belong. The
statute of Merton (1236) is noted as being that in
which the assembled barons declared they would not
have the laws of England changed.

The reign of Edward I., memorable in the history
of English law, was quite prolific in legislation. The
famous statute of Westminster (1275) was passed
in the first session of his reign, but Edward's pur-
poses were, in the main, reformatory and political
in that sense. The reformation of abuses, the due
execution of the existing law, the providing of more
efficient methods of procedure; in other words, the
framing of sufficient instrumentalities by which the
existing customs could be better enforced, were the
things he had in view, and these he sought to com-
pass by the statute last mentioned. The famous
statute De Religiosis (1279), which forbids the ac-
quisition of land by the religious orders in such wise
that the land should come into mortmain,2 is another
political and reformatory measure. So also the

1 Stubbs, Con. Hist., vol. i., p. 503.

2 Ibid., vol. ii., p. 117.

Growth and Function 107

Statute of Westminster the Second, and the Statute
of Winchester, both enacted in the same year (1285).
The first contains the enactment commonly called
De Donis Conditionalibus, and also a provision for
the better correction of errors of law committed in
the course of a trial, and which therefore did not
appear by the record; which is the original warrant
for our present bill of exceptions. The important
statute commonly known as Quia Emptores, which
saved to the chief lord of a fee the services and
profits due to him as the feudal owner notwithstand-
ing any grant by the tenant, thus destroying one of
the former consequences of subinfeudation, was
enacted at the third Parliament of Westminster
(1290). The object of this was the political one of
saving to the King and his chief lords the services
and profits just mentioned. The statute of Carlisle
(1309) was one of the many acts of legislation de-
signed to restrain the power and influence of the
clergy and the Pope. The statute of Pr&munire
(1355), declaring forfeiture and outlawry against
those suing in foreign courts for matters cognisable
in the King's Courts, was a feature of the struggle
between the King and the Church. The Statute of
Treasons (1352) for the first time defined the offence
and punishment of treason.

To further trace the course of British legislation
down to the period to which I shall next call particu-
lar attention, would involve a detail beyond the scope
of these lectures. I may safely say that this sub-
sequent legislation, however numerous the instances,
was in point of purpose and effect, as in the cases

io8 Law, Its Origin

I have already considered, special and particular,
the object being sometimes to correct an abuse,
sometimes to institute a reform, sometimes to carry
a point for or against the King, the barons, the
Church, or the people.

Still less have I room to trace for the same period
the course of legislation on the continent subsequent
to the promulgation of the Barbarian Codes. I must,
nevertheless, briefly indicate the general character of
the legal systems which grew up subsequently to those
Codes and the extent to which they were influenced
by legislation, confining my attention, however,
mainly to France and Germany. As we have al-
ready seen, the provinces of the Roman Empire of
which the Barbarians became masters, were civil-
ised States in which conduct was regulated by a
law customary, but substantially Roman. The
Barbarian Codes did not entirely, or in the main,
replace this law, but superinduced upon it the
customs of the Barbarians, as a personal law, binding
in favour of the Barbarians and as between them-
selves, but leaving the vanquished nations otherwise
to enjoy their own customs. The shifting of the
Barbarians from place to place, and the mingling of
them together, aggravated the confusion caused by
the simultaneous existence of personal and terri-
torial law, and made it intolerable. Besides this,
the unsettled condition of the whole territory, the
incessant wars for the extension of empire or the
aggrandisement of dynasties, the rapid changes in
the boundaries of States and provinces, would have
made orderly legislation impossible, had there been

Growth and Function 109

at this period any developed capacity for legislation.
Charlemagne, indeed, and his immediate successors,
made efforts to reduce this confusion into something
like order through their decrees called Capitularies,
but I think it is agreed by legal historians that their
effect was inconsiderable, and the practice of issuing
them was soon discontinxied. Law seems to have
been left to work out its own solutions, and the
result was, at least in France, that, after the lapse
of four centuries from the Barbarian conquest, the
confusion of personal and territorial law gave way
to the establishment of different territorial systems,
called Coutumes, in different provinces. These sys-
tems were in their nature customary law, variously
compounded of the Barbarian customs and the old
Romanised law, the latter almost continually grow-
ing in comparative strength, as society became more
civilised and given to industrial pursuits. This
growing predominance of the Roman law received
a fresh impetus from the revival of the scientific
study of that law, after the discovery of the Pandects,
at the University of Bologna. Students flocked
thither from all countries, and the legal doctrines
there acquired were disseminated throughout the
nations of the continent. A cultivated jurisprudence
was more and more demanded as civilisation ad-
vanced and industry and commerce became more
pervading. This was furnished ready-made by the
Roman law, and the administration of justice in all
the Western States of Europe became more and
more permeated with it.

Little resort was had to legislation in France until

i io Law, Its Origin

the middle of the fifteenth century. Between that
time and the reign of Louis XIV., a number of royal
ordinances were adopted, the principal of which had
for their object to reduce the Coutumes to greater
uniformity and precision and to improve judicial
procedure. France under Louis XIV., had become
a thoroughly consolidated absolute monarchy. The
sovereign was ambitious alike of personal and
national aggrandisement. His legislative power was
unlimited, and a great opportunity for improvement
in internal administration was opened to him. Under
the guidance of the wisdom of Colbert, this oppor-
tunity was employed in various efforts to reform the
public administration. So far as the legal system
was concerned there were three principal evils. The
first was the lack of an orderly and uniform method
of procedure in civil and criminal cases. The second
was lack of uniformity in the law growing out of
the various differing coutumes. The third was the
uncertainty and confusion in the law itself, the con-
sequence of the different sources from which much
of it had been borrowed, and the want of harmony
and capacity in the courts which administered it.
The method of improvement adopted by Louis
XIV. appears to have been to select branches or
subjects of law. in which improvement was most
needed, or perhaps in which it was most practicable
at the time, and reduce them to writing. The most
important of the measures were: (i) An Ordonnance
for the reformation of the procedure of the courts
in civil cases. (2) An Ordonnance for the reformation
of the criminal procedure. The subjects embraced

Growth and Function 1 1 1

by these two pieces of legislation are not substantive
law, but instrumentalities, machinery, designed to
carry such law into effect. They do not comprise
rules for the regulation of conduct, but forms of pro-
ceedings designed to enforce such rules; and they
are, as I may hereafter more particularly show, the
proper subjects of written law. (3) The Ordonnance
du Commerce, which was an attempted reduction of
the commercial law into writing — in other words,
a codification. (4) The Ordonnance de la Marine.
This was a like attempted codification of the maritime
law. In these two last mentioned pieces of legis-
tion we find the beginning in France of those attempts
for the reduction of the unwritten and customary
law to writing which culminated later in the Code of
Napoleon. It will be perceived that none of these
Ordonnances of Louis XIV. were designed to remedy
the confusion in French law arising from the differ-
ences in the provincial coutumes.

Louis XV. had the advantage of the advice and
assistance of the Chancellor d'Aguesseau, a con-
summate lawyer, and under his inspiration a begin-
ning was made in the task of bringing the law of
the different parts of the kingdom into uniformity.
This was done by the promulgation and execution
of three separate Ordonnances, one relating to dona-
tions— Ordonnance sur les donations, which had for its
object the reduction of the law in all parts of France
upon this subject to uniformity, being an attempt
in the way of codification. Another in relation to
testaments — Ordonnance sur les testaments, which
recognised and preserved the two different systems

ii2 Law, Its Origin

of law on this subject then prevailing in the Northern
and Southern parts respectively of the kingdom;
and the other relating to trusts — Ordonnance sur les
substitutions fid£i-commissaires, designed to effect
reforms in the constitution and administration of
trusts. This legislation under Louis XIV. and Louis
XV. was, to a considerable extent, embodied by the
framers of the Code Napoleon in their work. 1

In Germany, the course of development of law
subsequent to the Barbarian Codes was somewhat
different. The barbarous tribes, as they became by
degrees more civilised, required, as we have seen,
for the ordinary transactions of life a law more
refined than the rude customs by which they were
originally governed. Their civilisation was pro-
moted by their contact with the Roman peoples,
and hence arose a tendency in favour of the adop-
tion of the Roman law. This tendency was greatly
strengthened by the establishment of the Holy
Roman Empire. The close connection of that Em-
pire with Rome and the Church and its pretence
to be the successor of the Empire of the Caesars dic-
tated the sanction of the Roman law. But what
more, perhaps, than all else led to the general adop-
tion of that law was the circumstance that the
administrators and teachers of the law, bred in the
universities, everywhere participated in the revived
study of the Roman law consequent upon the dis-
covery of the copy of the Pandects, and exerted a
steady influence in favour of its general introduction as
the governing law in all private transactions. Never-

» Lee, Historical Jurisprudence, ch. xv., sec. iii.

Growth and Function 113

theless, the old customs were retained by the
different provinces as they became consolidated into
larger States, and the reconciliation of these with the
Roman law was the continual task of judicial admin-
istration. I suppose it would be true to say that the
Roman law came to be adopted except where it was \
in conflict with settled local customs, and there the
latter prevailed. Prior to the general movement in the j
direction of codification initiated by the Code Napo-
leon there was little in the way of legislation touching
the law of private transactions. Some important
private efforts were made to set forth the law of
particular States, but these had no other authority
than that of text-books. Prof. Lee states that
" according to the German opinion, the legislative
authority of the rulers had little to do with the
private law. That was a matter of custom and
should be left to the local communities to develop
as they wished.'*1

In Italy, the Ostrogoths maintained, for a time,
some of their barbarian customs superinduced upon
the basis of the Roman law, but the latter was never
displaced, and upon the revival of the study of
jurisprudence it resumed its sway as the sole guide
for the regulation of conduct.

The Visigothic conquerors of Spain seem to have
been ambitious of substituting their own law in the
place of the Roman jurisprudence, but their suc-
cessive declarations of the supremacy of their codes,
and interdicts of Roman law, serve to show how
difficult it is to supplant the law of a conquered

1 Historical Jurisprudence, p. 409.
8

ii4 Law: Origin, Growth, and Function

people without exterminating them, and also how
ineffectual are all efforts to govern the conduct of a
civilised people by the customs of barbarians. The
Jesuits of Spain have been wont to insist that their
law is Spanish, not Roman, but the contents of their
written codes and their own law-books contradict
this pretension.

LECTURE V

THIS rapid and glancing review of the most con-
spicuous instances of legislation in the ruder
periods preceding the present (1 enlightened* age, is
quite sufficient to enable us to answer the question
for what purpose and to what extent it was resorted
to throughout those periods. We have seen that it/
was employed to compose differences 1 )etween various
classes in society and to furnish machinery by
which the customary law might be more efficiently
administered, and from time to time to better adapt
that machinery to the changing and developing
wants of society, and that where it was aimed directly
at individual conduct it was for the purpose of secur-
ing better obedience to the customary law by public
punishment of the more flagrant violations of custom,
which is the office of the criminal law; in other/
words, we find that at the first appearance of legis-
lation its province and the province of Public Law
were nearly conterminous. The province of Private
Law is scarcely touched.

In the present enlightened age we find a much
greater resort to legislation; but the important
question is whether its purpose and nature have
been changed. This is easily answered. The whole
of the legislation of any American State, to take an

n6 Law, Its Origin

example, is contained in its easily accessible statute-
books. We may know the general contents of all of
them from an examination of those of one State.
They will be found to embrace its fundamental
Constitution creating the Executive, Legislative,
and Judicial Departments, the organisation of the
State into political districts, the creation of the
the various State and local officers and the designa-
tion of their duties; provisions for the conduct of
elections; a system for raising money to support
State and local government by taxation and applying
it in many different ways; provisions for creating
and maintaining public highways, including rail-
roads; for forming corporations, for preserving the
public health, and for supervising many important
public concerns, such as banking, insurance, etc.,
and a multitude of other public provisions including
the whole of the law relating to the designating
and punishment of crimes. Besides this, we find
in the numerous volumes of statute-books vast
masses of matter which, though in the form of laws,
are not law in any proper sense. These consist in the
making of provision for the maintenance of the
public works of the State, for the building of asylums,
hospitals, school-houses, and a great variety of
other similar matters. This is but the record of
the action of the State in relation to the business
in which it is engaged. The State is a great public
corporation which conducts a vast mass of business,
and the written provisions for this, though in the
form of laws, are not essentially different from the
minutes of ordinary corporate bodies recording

Growth and Function 1 1 7

their action. But when we search for any matter
relating to the regulation of the ordinary conduct
of men in their transactions with each other — that is,
to Private Law, we find exceedingly little, and we
may say that it is substantially true that the whole
vast body of legislation is confined to Public Law,
and that its operation on Private Law is remote and
indirect and aimed only to make the unwritten law
of custom more easily and certainly enforced. If we
make a similar examination of the Statutes at Large 5
of Great Britain the result is the same; and the .
same also, if we examine the legislation of Rome in
the classic era of jurisprudence.

There is one great seeming exception in the case
of the various codifications of the customary law.
We find in Roman Law the great volume of the Pan-
dects; we find the Civil Code in France. There are
Civil Codes in Germany. There is a reduction to ,
writing of one or more chapters of Private Law far
England ; and there are Civil Codes in several Amer-
ican States. But the exception in these cases, when
we consider its true nature, is more apparent than
real. The law enacted in these Civil Codes was not
made by the legislation enacting them. It existed,
for the most part, as law before, and the enactment
added no force to it. In the cases of Rome, France,
and Germany the unification of different peoples and
provinces into larger nations had made it necessary
for the tribunals to enforce different customs for
different places, an inconvenient task; but this
difference was gradually disappearing in the closer
relations brought about by the consolidation of

n8 Law, Its Origin

nationalities, and the main purpose of the codifica-
tion was to hasten the coming uniformity, which
could be completely accomplished only by legislation.
The motive to such codifications as have taken place
in the United States and Great Britain was the
supposed increased accessibility of the law by enab-
ling it to be found in a single book, the same motive
which led to the production of Digests. The crea-
tion of new law was but a small part of the object.

There are some smaller exceptions in which legis-
lation is employed in shaping rules of private con- OTA!
duct. I refer to instances in which actual changes
are made in Private Law in particular cases ; but they
are quite exceptional and occur in cases where the
courts are in conflict, or where the customs as en-
forced by the courts have been gradually changing
in the course of social progress, and conflicts in cus-
tom arise which the courts find it difficult to deal
with. But these exceptional cases really fall within
the province of Public Law, because it is the office
of that law to furnish to the judicial tribunals a
warrant for making those changes in decision which
the changes in custom require, but which a regard
for consistency prevents them from making. My
conclusion is that so far as Private Law — the law
which governs our conduct in our ordinary trans-
actions with each other — is concerned, the influence
of legislation — of written law — has been exceedingly
small. The latter, in fact, constitutes what has been
not inaptly styled "a mere fringe on the body of
law."

I have now completed my survey of human life in

Growth and Function

119

all ages and in all stages of social progress, for
the purpose of ascertaining the causes which have,
in point of fact, governed, and which still govern,
human conduct. This survey has embraced primitive
man, the savage member of a wandering horde ; man
when he first adopts a fixed place of abode; man
when he first consciously organises a social state;
man when he has first acquired the art of writing
and when he first employs that art in the composition
of laws; man as the subject of a conqueror imposing
his dominion over realms not his own; man as the
member of a conquered nation accepting submissively
the rule of strangers; man in society where there is
no power to protect him save his own right arm;
man during the long period in which he seeks by the
establishment of judicial tribunals to supplant the
violence of self-help; man down to the period
when judicial tribunals and legislatures have been
established and perfected; man in the present en/:
lightened age : — and the conclusion is clear that habit
and custom in each of these different conditions
furnish the rules which govern human conduct, and
that they still exert over enlightened man the same
imperious dominion that they did among the prime-
val hordes which peopled the world before the dawn
of civilisation, or that they now do among the bar-
barous tribes which inhabit the wilds of Patagonia
or Australia.

To the absolute generality of this conclusion an
exception is to be made for the influence of legis-
lation; but the extent of this exception diminishes
to a point where we may, for all large and general

iso Law, Its Origin

purposes, dismiss it from attention, when we con-
sider that its principal function is to supplement and
aid the operation of custom and that it can never
supplant it, and also consider, what I may hereafter
more fully show, that its own efficiency is dependent
upon its conformity to habit and custom. What has
governed the conduct of men from the beginning of
time will continue to govern it to the end of time.
Human nature is not likely to undergo a radical
change, and, therefore, that to which we give the
name of Law always has been, still is, and will
'orever continue to be Custom.

But while all Law is Custom, all Custom is not
necessarily Law. Law differs from custom as a part
differs from the whole. There is a large range of
human conduct of which the law takes no notice,
though it is under the control of custom quite as
much as that part which the law assumes to regulate.
A great part of this conduct falls under the control
of moral rules which are enforced mainly by public
opinion and form the subject of the science of moral-
ity, about which I shall have something to say
hereafter. Other parts of it are such as are con-
trolled by the usages of fashion or etiquette, and
there is still another most important part lying be-
yond the immediate scope of my inquiries in which
the individual alone is concerned, and which em-
braces what may be called his interior life. This is
more especially within the sphere of religious thought
and action.

This conception of law, identifying, as it does,
all the rules which govern the conduct of men in

Growth and Function 121

their transactions with each other, including even
the rules of morality, with custom and habit, will
not, I suppose, be willingly accepted. Legal writers
have at all times allowed much weight to custom,
viewing it as one, but only one, of the sources of law,
as if there were some governmental power standing
above custom, the function of which was to pro-
nounce judgment on the wisdom of custom, and
select from it the rules it would enforce and reject
the rest. Ancient customs they have indeed regarded
as having the force of law, but this quality they
impute, not to the custom, qua custom, but to its
antiquity, whereas the conclusion at which I arrive
erects present existing custom as the standard of law.
This is not in harmony with the opinion of those
who make law to be the positive command of the
Sovereign power in a State, nor of those who, like
the classical jurists of Rome, ascribe its origin to an
incomprehensible something called the Law of Na-
ture, and apparently not with the views of those
who regard all morality as founded upon the com-
mand of God, directly or indirectly revealed. It
will seem to all these to detract from the sublime
dignity which they would ascribe to law and moral-
ity, and impair the reverence in which they should
be held, to identify them with a thing seldom re-
garded as carrying with it any high obligation. We
say of men, by way of derogation, that they do this
or that, because they have got into the habit of doing
it, or because they feel that mere custom requires it,
and we are all inclined to regard it as evidence of a
lofty character when men disregard custom, and

122 Law, Its Origin

act according to their own independent sentiments.
Unvarying obedience to law we commend, but the
followers of mere fashion, or custom, are regarded
with a feeling akin to contempt. There are what we
call, speaking in ordinary language, bad customs and
habits (they are really practices contrary to custom),
and we find it difficult to view anything as in-
trinsically lofty and good which so often appears
in forms either indifferent or evil.

What is the reason of this hesitation and un-
willingness ? Is it that we assign too much of worth,
dignity, and elevation to law and morality, or that
our ordinary views of custom are too low? I am
sure that the latter reason points towards the truth,
and it suggests a closer inquiry into the real nature
and meaning of custom. This question lies beyond
the ordinary subjects of legal discussion, but it is
one which the Philosophy of the Law should attempt
to answer.

What then is wrapped up and concealed in the
word custom which we so often employ, sometimes
without assigning to it especial importance, and

sometimes regarding it as importing something
trivial or perhaps evil? We need but recall for a
1 single moment the account we have given of it, in
order to perceive that the ordinary views of it are
inadequate and erroneous. That thing which has
held imperious sway over the conduct of men of all
races, whether savage or civilised, and in all times,
can not be low, trivial, or evil. Where is the secret
of its power? The simplest definition of custom is
that it is the uniformity of conduct of all persons

Growth and Function 123

under like circumstances, but this suggests the
question — "What is conduct, and what is its cause?''
To answer this without indulging in speculation, but
extending our attention to all known truths ascer-
tained by observation, whether of the world of mind
or of the external world, we must avail ourselves
of the teachings of the science of Psychology. Con-
duct is some physical movement of the* body, and is
invariably preceded by some thought or feeling which
is its cause; and this thought or feeling is produced
by some operation of surrounding things — the en-
vironment— on the nervous constitution. Inasmuch
as the constitutions of men in the same society are
similar and the environments similar, the thoughts
must be similar and the conduct consequently simi-
lar. Hence human conduct necessarily presents
itself in the form of similarity — habits and customs.
This is true, not only of man, but of other races of
animals. The uniformity, however, is not absolute.
There are multitudinous exceptions and variations.
The original constitutions of men are not precisely
alike, nor are the environments of men, even in the
same locality and society, precisely alike. Their
thoughts are to a certain extent different, and the
acts consequent upon the thoughts in like manner
different. These differences are, for the most part,
exhibited in matters of small importance, and do
not obstruct social harmony. But there are causes
and occasions which disturb social peace. This is
more easily to be perceived in the simplicity of
primitive society. Some will have better weapons,
more skill, and greater strength and enterprise than

124 Law, Its Origin

others. Some will desire the same things that
others desire and to do things which others do not
wish to do. Hence collisions arise, and some are
irritated with the conduct of others, and exhibit
that irritation by retaliation and revengeful punish-
ment. If man lived in solitude, with no fellows, no
such collisions would happen. They are possible only
in society, and there they are inevitable. They neces-
sarily tend to violence and strife, and unless in some
manner restrained would cause perpetual private
war. Our nature supplies the correction for this
evil. Man seeks pleasure and shrinks from pain,
and what he has once seen to take place he believes
will happen under the like circumstances again.
The child does not at first hesitate to thrust its hand
into the fire, but does not make a second attempt.
The savage, at first, may see no harm in taking the
game another has caught, but when he receives
punishment from the resentment of the other, or
after he has received it many times and from many
others, refrains from repeating the trespass. Things
known to injure others thus come to be habitually
avoided, and customs arise of carefully avoiding
conduct giving offence to others. Again, as men
act in nearly all cases according to custom, the ex-
pectation of all is that others will continue so to
act, and any disappointment of this expectation
causes offence if the act is of an injurious nature.
Hence the tendency to follow custom and to enforce
it upon others is intensified. Those who obey this
tendency are safe. Those who act contrary to it
are pursued and punished. The worst offenders are

Growth and Function 125

relegated to the criminal classes, but all incur
disapproval.

The operation of the influences thus described is
discernible in the earliest known displays of human
action. When man made his first appearance upon
earth, he did not wait until some lawgiver appeared
to tell him how he must act. He asked no question
concerning what he might and might not do. He
was endowed with powers and desires which de-
manded activity, and he proceeded to act. The con-
sequences of his first action began the formation of
a guide for his future action, and every succeeding
exercise of his powers was followed by consequences
which he observed and from which he derived further
instruction. He learned that he must not injure
or assail the person of another. This teaching of
experience was accepted by all, or nearly all, and the
great right of personal security arose. He learned
that he must not take the fruits of another man's
labour, and under this lesson, taught to all, the
great institution of private property came into being.
His nature led him to unite himself to a woman and
to cherish her and to care for their offspring, and the
institution of the family arose. This little society was
exposed to the depredations of strangers, and this
danger prompted a unison of families into tribes in
order to form a more perfect defence. He found a
pleasure in plenty of possessions and, instead of con-
suming ail the fruits of his labour, sought to save
some. He learned to postpone present enjoyment to
a future good, and wealth, with a division of employ-
ments, increase of population, and improved cultiva-

i26 Law, Its Origin

tion of the earth, succeeded to the precarious con-
dition of savage life. He found his pleasures and
his ambition centring more and more in the circle
of his own fireside and extending to his kindred, and
thus began the development of the Moral Sentiment,
the original stimulus to the civilisation and refine-
ment of the race. At the same time all these con-
sequences of his activity were having a reflex in-
fluence upon himself, and became in turn the causes
of the same things of which they were themselves
the consequences. We know from physical and
moral science that all the acts of man, including his
thoughts, have lasting consequences affecting him-
self. They not only influence his future action, but
enter into and modify his physical constitution, and
this effect is transmitted to his offspring. A man
is what his thoughts and acts make him to be, and
his posterity inherit and reproduce his virtues and
his vices. Every virtuous thought and act tend to
make the man better, and are the parent of other
acts more virtuous still. As every man knows to
some extent, consciously or unconsciously, that
every one of his acts will be followed by consequences
agreeable or injurious to himself, and will be acqui-
esced in by others, or excite their displeasure, he
is constantly considering conduct and consequences
both in respect to himself and to others. This is the
great study of life with all classes at the present time
and has been such study in all times. It results in
tracing out a sphere of conduct within which the
individual can move and act with freedom and
security, and beyond which he cannot pass without

Growth and Function 127

encroaching upon the like sphere of another and
exciting resentment with its consequences. If
society were absolutely stationary, the boundaries
assigning to each his own arena of action would
become distinct and permanent, but as it is ex-
periencing continual change, new conditions, exciting
new thoughts and producing new forms of conduct,
are continually arising and introducing confusion
into customs which become gradually cleared up
through the action of the same natural causes.
Barbarous society is thus continually engaged un-
consciously in the work of accumulating a body of
custom embracing the wisdom of long experience
transmitted from generation to generation, and in-
creased in the transmission. Progressive societies
both unconsciously and consciously, through the
works of jurists, legislators, and reformers, pursue
the same study of conduct and consequence, selecting
and adopting whatever conduces to well-being,
eliminating and repressing whatever is hurtful. The
unconscious conclusions of the savage, the loftiest
conceptions and aspirations of the sage, controlling
manners and conduct, affecting the physical con-
stitution and passing as an inheritance to posterity,
become forever imbedded in the life of the race and
express themselves in its customs. Custom, there-
fore, is not the accidental, trivial, and meaningless
thing which we sometimes think it to be. It is the
imperishable record of the wisdom of the illimitable
past reaching back to the infancy of the race, re-
vised, corrected, enlarged, open to all alike, and
read and understood by all. It was a happy ex-

128 Law, Its Origin

pression of Lord Coke that the wisdom of the law
was wiser than any man's wisdom. The work of the
jurist to-day, the work of all the highest tribunals
of enlightened Europe and America, is that same study
of conduct and consequence which has been forever
engaged in by the commonest of men. How poor
the conclusions of the wisest of lawyers gathered
from their own original reflections when compared
with those garnered up in the actual customs of
life! And how wretchedly poor in comparison are
the written commands of the Sovereign State so far
as they relate to conduct and manners, coloured
and affected as they are with the ignorance, passion,
and self-interest with which legislative bodies are
filled! What higher or more dignified conception of
the study of the law can there be than to make it
^ the task of seeking out, discerning, applying, and
extending the principles upon which those grand
generalisations of conduct have proceeded which are
the fruit of human experience extending through
countless ages?

It may be wondered why the study of the law,
which is the study of conduct and consequence, thus
prosecuted from the infancy of time, should have
left so many problems still unsolved, but it must be
remembered that no human actions are exact repe-
titions, and each as it occurs presents its own differ-
ences, most of them indeed immaterial, and yet
multitudes of them important. Life is an ever
unfolding spectacle of new transactions and phases
of conduct, which will forever demand the work
of study and classification. Moreover, as the

Growth and Function 129

moral nature becomes more sensitive, men become
inclined to act more and more upon motives of
justice and benevolence to others. The impulse is
first felt by the more cultivated and intelligent, and
tends to spread in ever widening circles throughout
society. The higher forms of conduct ripen into
new customs, and men become dissatisfied with the
standards which the existing law applies. When
these standards fail to conform to the actual customs
their validity is challenged, and by degrees they
become discredited and overthrown in the courts.
The occupation of judicial tribunals and lawyers
lies not only in solving new problems which the
advance of time presents, but in correcting the errors
of the past, or rather what would be errors if per-
sisted in — that is, in conforming the law to the actual
custom of the present.

We have now reached what I conceive to be a just
conception of the nature of Law in its largest sense;
and this, not by starting from any a priori postulate,
but from actual observation of the causes and rules
by which human conduct ever has been and is, in
fact, governed. The main elements of this con-
ception may be thus summarised: f

(i) Law begins as the product of the automatic
action of society, and becomes in time a cause of the
continued growth and perfection of society. Society
cannot exist without it, or exist without producing it.
Ubi societas ibi lex. Law, therefore, is self-created
and self-existent. It is the form in which human
conduct — that is, human life,presents itself under the
necessary operation of the causes which govern

9

130 Law, Its Origin

conduct. It is the fruit of the myriads of concur-
ring judgments of all the members of society pro-
nounced after a study of the consequences of conduct
touching what conduct should be followed and what
should be avoided.

(2) Inasmuch as conduct is necessarily controlled
by previous thought, and such thought is deter-
mined by individual constitution, that is, character,
and the environment, nothing can directly control
conduct, which cannot control both character and
environment. It is not, therefore, possible to make
law by legislative action. Its utmost power is to
offer a reward or threaten a punishment as a con-
sequence of particular conduct, and thus furnish an
additional motive to influence conduct. When such
power is exerted to reinforce custom and prevent
violations of it, it may be effectual, and rules or
commands thus enacted are properly called laws;
but if aimed against established custom they will be
ineffectual. Law not only cannot be directly made
by human action, but cannot be abrogated or changed
by such action.

(3) This thought, which must necessarily precede
all voluntary action, is employed in the study of the
consequences of conduct, and so far as concerns con-
duct towards others (which is the only field of con-
duct regarded by the law), it considers how any con-
templated conduct will fairly be received — whether
with satisfaction or with displeasure, whether with
acceptance or with opposition; that is, whether it
will comply with or disappoint a fair expectation.
If the contemplated conduct is in plain conformity

Growth and Function

to custom, or the contrary, the judgment is instan-
taneous ; if it is novel, hesitation arises and careful,
perhaps prolonged, thought is given to it; but the
thought is employed alone in considering the con-
sequences of the conduct. This is the daily study of
life with all men, and the study of the lawyer differs
from it only in being pursued scientifically by an
expert.

(4) Since conformity to custom is the necessary
form which human conduct assumes in social
dealings, it is the only just and right form. No other
standard can be erected over it.

The raison d'etre of law, the function it discharges
in the social organism, has already in great part
been indicated; but the importance of a clear com-
prehension of this justifies a little more extended
treatment, for how can the work of legislation, which,
in the modified sense already indicated, is the making
of law, be well performed unless the function of all
law be well understood ?

In considering the function of law we are looking
at it in its dynamical aspect as an operative force.
Statistically regarded law is custom, when dynami-
cally it is the force acting in harmony with custom
and compelling obedience to it. What is the service
which that force performs in the social organism, or
rather what is the ultimate good at which it aims?
Primarily we know that obedience to custom en-
forced by law is a necessary condition to the existence
of society, but society is not in itself an ultimate
good ; it is but a part in the scheme which looks to
the good of its members, to the good of the indi-

i32 Law, Its Origin

viduals who compose the race. Have we any means
of knowing what the ultimate individual good is, so
far as conduct is concerned?

Going back to fundamental principles we find
happiness to be "our being's end and aim," but in
what line of conduct is the greatest happiness to be
found? We have seen that it is not in immediate
enjoyment, but that we often find a larger aggregate
of happiness in postponing present enjoyment for
more distant and wider results. These more distant
results we may find to be desirable only because
they are useful in securing results more distant still.
Is there any final result, or condition, which we may
pronounce to be good in itself, and at which we may
aim as being the ultimate good, the summum bonum?
Mr. Herbert Spencer gives an answer to this question
which seems to me to be more agreeable to reason
than any other. He regards the solution to rest in
the answer to the question whether life itself is a
blessing. Whoever thinks it is not a blessing, can
find no real happiness anywhere. He is a pessimist
and must welcome annihilation, as bringing an end
to. present misery. But there are no real pessimists,
at least among the sane. Life is a condition to which
all cling, and for which most other things will be
sacrificed. And if life itself is the supreme desire,
the largest and completest life must be the nearest
approach to pure happiness ; not indeed that momen-
tary pleasure which accompanies the activity of any
particular desire or passion, but that greatest aggre-
gate sum of pleasures which is the fruit of the activity
of all the powers of life.

Growth and Function 133

Of the conditions necessary to enable the individ-
ual to attain this object I name, without fear of
contradiction, as the first, Liberty, the choicest of
human blessings ; and I define Liberty as being the
permission or power to do what one pleases to do
without any . external restraint. Self-restraint we
must continually exercise, and the practice of it is
a means of the highest self -improvement ; but if one
may do all he wishes to do without fear of external
punishment or sacrifice he may be said to enjoy
perfect liberty. He is then his own master. He
then perceives the inevitable connection between
his conduct and its consequence, recognises the fact
that the pleasure or the suffering he experiences are
rewards or punishments gained or suffered by him-
self. He is then in a condition which he cannot
otherwise enjoy, of working out that ultimate
destiny which is in harmony with universal devel-
opment and progress.

It is manifest, however, that no such unrestricted
liberty can be enjoyed in society. The primeval
savage found that others desired the possession of the
thing which was within his grasp, that he sometimes
wished the exclusive enjoyment of what others
possessed, and that moral struggles were thus pro-
duced which aroused mutual resentments and con-
sequent punishments, given and received. He
learned to refrain from exciting the resentment of
others, taught others to refrain in like manner, and
custom thus fostered and enforced became the
beginning of law. The direct and necessary tend-
ency of this restraint was to trace out boundary

134 Law, Its Origin

lines of individual action within which each person
might freely move without exciting the opposition
of others. Here we find exhibited in its earliest and
simplest form the function of the law. It is to
distinguish and separate the things which each
individual may do or enjoy from the things which
he may not do or enjoy without invading the equal
liberty of others ; and when this is done the nearest
approach to perfect liberty is reached. And if we
look at the operation of the law under the complex
conditions of modern enlightened life we reach the
same result. If we scrutinise the proceedings in any
judicial controversy we shall find that it turns upon
the examination of some particular piece of conduct
to determine whether it is within the rightful sphere
of individual action. The study of the consequences
of conduct prosecuted through countless ages has
been animated by no other purpose and has had no
other effect than to gather together and consolidate
in the life of the race that vast body of knowledge
which sometimes consciously, but more often un-
consciously, instructs us what we may do without
disappointing the fair expectations and provoking
the opposition of others. The great German philos-
opher Kant, assuming to proceed by an a priori
inquiry reached the same conclusion and made this
his definition of law : ' ' The sum total of the conditions
under which the personal wishes of one man can be
combined with the personal wishes of another man
in accordance with a general law of freedom" and
Savigny, after an inductive inquiry, more clearly
expresses the same conclusion in his definition:

Growth and Function 135

"The rule whereby the invisible border-line is fixed
within which the being and the activity of each
individual obtains a secure and free space."

But the boundary line of individual action marks
out not only the limits beyond which other indi-
viduals must not pass, but also the limits which the
state in its corporate capacity must not pass, and so
in determining the true function of law we also
determine the true province of legislation. Society
has an organised power which is usefully exerted
only for the purpose of assisting man in working out
his destiny. This power operating externally pro-
tects society against its enemies; its function in its
internal operation is to insure the enforcement of law,
that is of custom, and, so long as it confines itself to
its true province, to make still more clear those
boundary lines of individual action the observance
of which is the supreme guaranty of Liberty. Any
law which has an effect beyond that of maintaining
these lines, is by so much an encroachment upon
just liberty, and as that liberty is the choicest of
blessings so that encroachment is the worst of woes;
and whether it is made by the decree of an absolute
monarch or by the regular enactment of the legis-
lature of a democratic government, is, alike in either
case, what we denominate by the word Tyranny.
But I will not here disparage the high office of legis-
lation by pointing out the evil which flows from it
whenever it departs from its just province and invades
the domain of Liberty. Within its province it is
capable of a work of great and increasing beneficence.
It is, even more than the work of the judge, the

136 Law: Origin, Growth, and Function

conscious activity of society to improve its condition
by improving its laws. In the order of succession
this activity follows the work of the judge, f Custom f
first operates unconsciously to produce law. ^Jn a /
^further stage of social advancement, society becomes
an organised power and consciously exerts itself to 1
aid and perfect the development of law. ^Finally it /
comes to do what the judiciary from its inability ;
to break suddenly from the past and from its limited j
capacity to continue political instrumentalities for \
the enforcement of custom is unable to do, not to \
make law, but to make rules relating to law, as well j
as the complex machinery which the practical ad- I
ministration of law by the state requires. Here is
a task the proper performance of which taxes the
highest capability of the intellect of man. It is here
that the so-called great law-givers of the world
have earned their glory. Moses and Solon tower
above the great captains of their times. "The vain
titles of the victories of Justinian are crumbled into
dust, but the name of the legislator is inscribed upon
a fair and everlasting monument." But I must
reserve the subject of legislation for a separate and
more particular treatment.

LECTURE VI.

OUR scrutiny into the causes which govern human
conduct, while it has led us to the conclusion
that custom is the principal one, at least so far as
our relations with each other are affected, and the
only one which the unwritten law regards, has in-
cidentally informed us that the law, whether written
or unwritten, does not attempt to enforce custom
always and universally, and common observation
equally apprises us that there is a part of the field of
conduct of which the law for some reason takes no
notice, and which is yet, in great part, though not
wholly, under the control of custom. We cannot fully
understand the nature and function of law, without
including the whole field within the limits of our
inquiry, and ascertaining what part of it lies beyond
the scope of the law and the reasons which underlie
the limitations which the law imposes upon its own
activity. It is thus that some consideration of the
subject of Morality becomes pertinent to our main
inquiry. No one can become a thorough lawyer
without an intelligent comprehension of the general
subject of Ethics, nor, let me add, without a fixed
and constant sense of the personal obligation to
conform his own life to the rules which the study of
Ethics reveals.

137

138 Law, Its Origin

That part of conduct to which I now call atten-
tion as being controlled by custom, without the aid
of law, is that which relates to what are usually
regarded, whether properly or not, as the smaller
affairs of life, the less important intercourse of men
with each other in society, and which is subject to
social rules. We have found that the rules which
the law sanctions require our obedience to custom
because otherwise there would be incessant strife
and violence; that is to say, that obedience to so
much of custom is a necessary condition to the
existence of society. It would seem to follow, there-
fore, that if there be any part of social conduct
which, though not involving the existence of society,
yet affects in a material degree the comfort and
enjoyment of it, — and there is a large field of such
conduct, — it also ought to be under the dominion of
custom. This we find by observation to be true.
If I am invited to a dinner party, and accept the
invitation, I am bound to keep the engagement, and
this obligation, though I cannot be held answerable
to the law for its violation, is enforced by sanctions
sometimes more powerful than those of the law. All
that the law can do to enforce its obligations is to
annex to the violation of them undesirable con-
sequences; but to the violation of some merely social
obligations society sometimes attaches consequences
much more feared. The offender seriously disappoints
the expectations of his friend, excites his displeasure,
and perhaps forfeits his friendship. The circle of his
friends participate in the displeasure, withdraw their
courtesies from him, and continued repetition of the

Growth and Function 139

offence would bring upon him social ostracism.
There are numerous offences against social custom
which are punished in like manner. A man must
not appear shabbily dressed, or in a state of intoxi-
cation, or set a bad example. Offences like these
disappoint expectation and create in others irritation
and resentment. The ordinary rules of etiquette
and fashion obtaining in social circles have a similar
foundation and sanction. Social customs like these
are often spoken of depreciatingly as merely con-
ventional, or capricious, or whimsical. They do
indeed differ greatly in importance from those of
which the law takes notice, and very different degrees
of culpability are attached to the violation of them.
Such obligations, however, are, in their nature, the
same as those of the law, the difference being in the
rigour with which they are enforced. Where vio-
lations of custom are calculated to excite such irri-
tation and displeasure as to provoke violence and
perhaps bloodshed they are destructive of society,
and the repression of them becomes necessary to
social existence. Society must apply to this repres-
sion its most effective compulsory force, and this in
civilised States is furnished by organised and regular
law; but those offences which simply impair the
comfort and pleasure of society are left to be re-
pressed by the spontaneous action of social opinion
operating in the ways I have indicated. The func-
tions also of this social discipline are the same with
those of the law, namely, to secure to every one the
free permission to do all he wishes to do without
encroaching upon the like liberty in others. Conduct

140 Law, Its Origin

by one person which, though it does not injure
another either in his person or property, yet offends
his feelings, is an invasion of his personal sphere
within which all wish to be secure from intrusion,
and such security is necessary to the equal freedom
of all. Social discipline and punishment begin, long
before the law is reached, with all offences. Where
the force of regular law is applied it is directed
against those of greater magnitude, leaving the others,
however, to be still enforced by custom. These two
modes of discipline are alike also in this: the sanc-
tions of each — that is, the forces which compel
obedience — are external. They are not like the
promptings of what we call conscience. I do not
mean Jhat conscience does not ordinarily enjoin
obedience to law or social opinion, — undoubtedly it
does; but it does not necessarily do so; indeed it
sometimes enjoins disobedience. Some, while agree-
ing that we are bound to conform to custom so far
as the law enjoins it, may not be inclined to concede
the view that a like moral obligation exists to
follow custom even when it is not enforced by legal
sanctions. They have the feeling that it is best, so
far as possible, for each one to determine what is
right and to do that, rather than conform to a mere
social standard. I will not stop here to inquire
whether there is any such thing as absolute right, or
in what it consists. I think it true that we all have
a certain feeling that there is such a thing as right in
itself, and however difficult it may be to define it,
such difficulties do not detract from the dignity
and importance of the sentiment. Those to whom

Growth and Function 141

I refer perceive, what is indeed true, that the dic-
tates of custom, whether enforced by law or not,
are of a conventional nature, and they are therefore
inclined to deem them of less weight, and especially
is this the case when they find, as they occasionally,
and perhaps often, must, that they are not in har-
mony with their views of what is intrinsically right.
They feel some hesitancy in determining what con-
duct to pursue when custom points in one direction
and conscience in another. That there is at times
a real opposition here is doubtless true, and I am
one of those who believe that the command of con-
science in such cases should be obeyed; but it
should be the true voice of conscience, and not what
it is apt to be, that of ignorance, self-conceit, or
obstinacy. What I wish to point out, in the firsti
place, is that custom, however conventional, doesj
in nearly every case dictate what is just, according I
to the common sense of justice. I start with the'
assumption, which every one must concede, that
human society is the necessary product of the human
constitution. If we consult our own consciousness
we find that we are so made that we cannot live
except in society, and observation teaches that man
is nowhere to be found living in any other condition.
Whatever is necessary in the scheme of the universe
must be right, and society therefore is right and
necessary, and what is necessary to society is, in
itself, necessary and right. Now, if in coming into
society each individual should deem himself obliged
to pursue that conduct, and that alone, which he
deemed to be intrinsically right in itself, and should

Law, Its Origin

act accordingly, he would find that he was con-
tinually disappointed in the conduct of others
affecting himself, and that others were alike dis-
appointed in his action affecting them, for it is
certain that their notions of what was intrinsically
right would not agree. Some would be better edu-
cated than others, and would reject the standards
which others would adopt. Some would be misled
by vanity, or other faults, much more than others.
In short, there would be every variety of difference
of opinion, and consequently, every variety of action.
If these differences were impartially weighed they
would generally be found not to be of much moment,
but such is the effect of vanity and obstinacy that,
in the eyes of the individuals, they are magnified
and assume an undue importance. Disputes and
collisions, with the consequent disappointments
and irritations, would mark all social intercourse, and
greatly impair that harmony essential to the happi-
ness and benefit of society. Nothing but law would
prevent bloodshed and violence, and such dissension
as the law did not assume to restrain would widely
prevail. It is therefore manifest that some rule
other than the individual sense of right should be
adopted for the government of conduct in that field
not occupied by the law. The notion that each indi-
vidual should be left to follow the dictates of his own
conscience must be at once abandoned. What sub-
stitute can be found ? It might be suggested that a
few of the wisest and best might be selected to frame
rules, but they would inevitably frame such rules
as would accord with their individual notions, and

Growth and Function 143

to impose them upon others who did not happen to
agree to them would be mere tyranny, and defensible
only because it seemed to be necessary. Moreover,
how could any human beings, however good and
wise, frame rules which would serve to govern those
infinitely numerous and varied acts which make up
the ordinary intercourse of social life, and how could
the rules be learned ? This is manifestly impossible.
If it were possible that a body of rules could be
framed by the equal voice of all, which would
represent the average beliefs and sentiments of all,
with a certainty which all would admit, and it could
be perfectly learned, it would seem to be an ex-
pedient as good as could be desired. What is needed
is an ever-present guide informing us instantly how
to act without stopping to think.

Inasmuch as every one of our acts is preceded and
caused by a thought, a man's conduct is the unerring
evidence of those thoughts. Customs, therefore,
being common modes of action, are the unerring
evidence of common thought and belief, and as they
are the joint product of the thoughts of all, each one
has his own share in forming them. In the enforce-
ment of a rule thus formed no one can complain, for
it is the only rule which can be framed which gives
equal expression to the voice of each. It restrains
only so far as all agree that restraint is necessary.
It is the reign of liberty, for it gives to each individual
the largest possible area in which he can move and
act with unrestricted freedom. This discipline is
the source of the courtesy, deference, politeness,
and all the graces of social life. Moreover it has

i44 Law, Its Origin

the same supreme excellence which belongs to the
enforced rules of law. It is a growth beginning like
the law far back in the early stages of civilisation,
cultivated by the contributions of wisdom and
experience, the final result of the combined efforts of
society to select and retain what is beneficial, and
reject what is hurtful. Manifestly rules thus framed
must be superior to any which the wit of particular
men could devise. They are not indeed perfect, and
as they are the product of the average thought, must
change as that thought changes — that is, as the moral
sentiment expands and develops.

There still remains another division of the field of
conduct which I have not as yet touched. It is one
over which custom, whether alone or reinforced by
law, asserts no jurisdiction. It is where man enjoys
absolute freedom from external control. Inasmuch
as custom dictates what we must do in that part of
our conduct affecting the existence, good order, and
comfort of society, if there be any part of conduct
which does not involve the welfare of others,
there interference should stop, and man be left
absolutely free. I do not mean that he should be
free in the sense of being no longer governed by a
regard to the consequences of his conduct, but free
so far as respects external control. The great law of
causation, as supreme in the moral as in the physical
world, here operates to attach to every action its
inevitable consequences, and this supplies motives
and influences conduct; but, aside from this, man
is here free. This is the world of personal and
individual life, not less interesting than that of sociaL

Growth and Function 145

life. It covers conduct so unimportant or so trivial
that it is not worth while for others to concern them-
selves with it, as what a man eats, or drinks, or wears,
what occupations he follows, what amusements he
enjoys, what society he prefers ; these are his concern
alone. It covers also conduct too lofty and serious
to be graduated by an average which would destroy
individuality and bring all men to a common level.
A man must practise so much of justice, charity,
sympathy, and benevolence, as others may fairly
expect of him, but while he must not display less,
others will not complain if he displays more. He
must be a good citizen and neighbour ; he may be a
conspicuous blessing to his race.

What is the rule which here regulates our lives?
In considering that part of our conduct which con-
cerns others, I have sought to discover those rules
only which actually regulate conduct, not those which
ought to regulate it. Science asks primarily only
what is, not what ought to be. So the question here
is what, in fact, regulates our personal and individual
life, not what ought to regulate it, although I imagine
that the rule which will be found in fact to exist, is
the best. If there be any rule, it must be one
founded in the nature of man, and we cannot change
it if we would; and necessarily — so, at least, we
must admit — it must be the best possible rule.

In answering the question I must take a step fur-
ther back than I have yet taken towards the origin
and cause of all conduct. The all-pervading law of
causation teaches us that for every act there is a
cause, and the cause of every voluntary act is what

i46 Law, Its Origin

we call a motive. Conduct of necessity obeys the
strongest motive, and if we perfectly knew in the
case of any individual what his constitution — that is,
his character — was, and what the surrounding attrac-
tions and repulsions presenting themselves to his
mind were, we could with certainty predict his
action. I shall not attempt to solve any of the
puzzles presented by the speculations concerning
the freedom of the will, but that we do in fact act
in obedience to the strongest motive is a truth made
evident by all human experience. If we wish to
induce any one to do a particular act, we know of
no means to that end except the furnishing to him
of something which will create, or strengthen, in
him some motive to do it. Even custom has no
power by which it can compel a man actually to do
anything. It can, by creating the fear of legal
punishment or of adverse opinion, induce him to do,
or to refrain from doing ; but this is simply supplying
a motive; and the most dreaded punishments of
the law or of social opinion are effective only so far
as they create an efficient motive. And all motives
are, at the last analysis, of the same nature with all
men. They all resolve themselves into the simple
desire to enjoy pleasure or happiness and to escape
pain. The debauchee who plunges into sensual excess,
and the lone ascetic who seeks to mortify every
appetite with the scourge, the youth struggling for
the Olympian wreath, or the martyr at the stake,
are alike animated by the same motive — to experi-
ence pleasure, or to avoid a greater pain. But how
different the consequences of the conduct of different

Growth and Function 147

men who yet act, and who cannot help acting, from
the same motive! One man thinking of nothing but
the pleasures of the flowing bowl commits excess,
and awakens from debauch to find himself an object
of pity or contempt to his friends and of self-disgust.
Another thinks of next morning's headache, observes
moderation, and awakens after his sleep happy and
ready for the duties of the coming day. What
makes this difference between the preferences which
have shaped conduct in these two instances? I
apprehend that it is just this; that one thought
only of the pleasure coming immediately from indul-
gence, while the other looked further to the more
distant consequences of conduct, saw pain to be
avoided and other pleasures to be enjoyed by modera-
tion, and in order to gain what would be, on the
whole, a greater sum of pleasure, postponed a present
enjoyment to a future good, and practised self-
restraint. He looked beyond the immediate to the
more distant consequences of conduct, and governed
his own action by a regard for them, and found
therein a greater sum of pleasure.

We here reach a thought upon which we cannot
dwell with too much attention. Here is the respect
in which man stands above the brute creation.
Some of the lower animals do indeed store food in
harvest-time for subsistence in winter; but I know
of no other instance in which they practise self-
restraint, — if indeed they do so here, for perhaps
they do not lay away food until immediate appetite
is fully satisfied; and so much is necessary for the
preservation of the species. The provident conduct

148 Law, Its Origin

stops there. It is also the respect in which some
men stand in supremacy over others, and the su-
premacy is in the proportion in which they exercise
self-restraint. It is also the prime respect in which
civilisation rises above barbarism. The savage cap-
tures wild game sufficient to satisfy the immediate
demands of his appetite, and then sinks to ignoble
ease, or indulges his brute and warlike passions.
The civilised man undergoes what with other pur-
poses would be painful labour, and gathers a supply
more than enough to sustain himself and his family,
and employs the surplus in improving his habitation,
procuring better clothing, providing means by which
he may better enjoy his leisure, not only in making
himself and his family happy, but in creating a scene
of happiness about him. Man here acts in obedience
to immutable laws. He is impelled by nature to
seek happiness. He finds that conduct in one direc-
tion is the source of happiness, in another of misery.
The consequences which he has seen to flow from
a line of conduct he expects to repeat themselves
if the conduct is repeated. Moreover, his disposition
to obey these teachings is strengthened and ad-
vanced by growing and developing moral sentiment.
He finds, at first, his happiness increased in the
narrow circle of his family and home, then his regard
and interest extend farther, and he finds increased
happiness in the enjoyment of his friends and
society. His sympathies become developed and
enlarged, and elevate and enlarge his standard of
conduct, and lead him to take within its range
broader and broader circles, and to this result of

Growth and Function 149

the alternate action and reaction between the
sympathetic and the intellectual nature there is no
end until it is recognised that —

"All are but parts of one stupendous whole."

And the habits thus engendered of seeking the
more remote and wider good tend to rob that pur-
suit even of the pain of self-restraint and convert it
into a pleasure. An object repeatedly pursued for
the sake of the pleasure it eventually brings becomes
loved for its own sake, and the ultimate pleasure in
the end is sunk in the present enjoyment of the
means, and thus real happiness is found to consist
in the well directed activity of our powers. How
true this is in the pursuit of knowledge we all know,
"If, " says Malebranche, "I held truth captive in my
hand I would let it fly, in order that I might again
pursue and capture it." 1

Does man in thus forbearing to gratify immediate
desire and practising self-restraint in order to gain
a more distant, but larger, good obey a rule? I con-
ceive that he does. A rule is something obedience
to which implies the pain of self-restraint, which is
a real pain, at least until obedience to the rule has
become so habitual and full of reward as to be trans-
formed into a pleasure. If man simply yielded his
conduct to the attractions of immediate enjoyment
without regard to the ultimate consequences, pleas-
ure would be the end of his conduct, but we could
not properly declare it to be the rule. We should
rather say that the man acted without rule. But

1 Hamilton's Lectures on Metaphysics, Boston, Lecture I. p. 9.

i5° Law, Its Origin

all men, except the utterly bad (if there are such),
find that, in order to gain the largest sum of that
which they universally and constantly seek, namely,
pleasure, they must scrutinise the consequences of
conduct and follow that line of action which, on the
whole, is calculated to procure for them the largest
measure of happiness; and the more civilised and
enlightened they are, the more they feel bound to
make this scrutiny, and to follow the conclusions
to which it leads, even though it compels some self-
sacrifice, self-restraint, and pain. Here is a rule,
and an actually existing rule which men, or the bulk
of them, really observe not completely and in all
instances, for they frequently violate it, but it is
none the less a rule. The law and custom are fre-
quently violated, but they nevertheless remain
rules. This contemplation of the probable, or
certain, consequences of our conduct is obviously
the mere exercise of what is called our reason. It is
the endeavour to know what will happen in the
future by considering what has happened under like
circumstances in the past, and the rule of which I
speak is a feeling that we must act in a certain way
in order to bring about or prevent, as the case may
be, the most desired, or the most feared, conse-
quences. And there is no other actual rule in this
field of personal and private conduct. If the viola-
tions of it were more numerous than the compliances,
and were all, or the bulk of them, prompted by the
same cause, and that cause were one that restrained
conduct, they would themselves constitute the rule.
But no one will contend that this is the case. That

Growth and Function 151

man should habitually act so as to gain misery for
himself is not easily thinkable. All the violations of
this rule consist, not in restraint, but in licence.
The only consideration which restrains conduct is
the dictate of reason advising the sacrifice of
immediate pleasure for a more distant and wider
happiness. The violations of the rule are really
but exceptions, however numerous.

The rule therefore which in fact governs in this
sphere of personal and private conduct is that which
impels us to obey the dictates of reason founded
upon a scrutiny of the consequences of conduct.
Ought it to be the rule ? This is an audacious ques-
tion which we are not permitted to ask unless we
are vain enough to presume to sit in judgment
upon the work of the great Author of all, and
imagine that we can discover a better one.

What is the name given to this rule? Common
speech frequently affords the most precise defi-
nitions of things which it is difficult to well describe,
and it does so here. It is conscience, the inward
monitor — con and scire, to know or to feel — a con-
viction within one's self as the product of one's own
thought. And thus the universal feeling that man
ought to follow the dictates of his conscience has a
scientific basis.

While conscience informs us that we should, in
general obey the law and custom, for the reason
that they embody the results of the common thought
of all and of the operation throughout the unlimited
past of that same reason which gives our own con-
sciences the light by which they are guided, and are

i52 Law, Its Origin

thus the fruit of the experience of the race, which is
wiser than any man's wisdom, still its own final
command is supreme over both custom and the law.
There may be cases in which a man maybe justified
in defying custom, and even the law—

" What conscience dictates to be done,

Or warns me not to do, .
This teach me more than hell to shun,
That more than heaven pursue. "

But we should be certain that the whisperings of
vanity or the promptings of obstinacy are not mis-
taken for the true utterance of the inward monitor.
The former are likely to be regarded by others
with contempt, the latter points out the pathway
which heroism treads, and may win the crown of
martyrdom.

There is a certain feeling common to all which
tends to make us think that conscience is a separate
faculty bestowed upon man, a moral sense which
instinctively and immediately informs him what is
is right and what is wrong. We speak of the ' ' voice
within" and use other phrases importing the exist-
ence of such a moral faculty. For this view there
is really no foundation. It can hardly be that there
are two independent rules for conduct. If we have
a moral sense which by its inherent power discerns
and declares what is right it must be unerring. We
should follow its dictates implicitly. We should
never indulge a second thought. If what we call
reason, or a regard for consequences, should be
allowed to control our conduct, in opposition to this

Growth and Function 153

interior sense, we should be following a false light.
But we have no moral sense other than conscience,
and this is, in fact, only another name for the dictates
of reason founded on a view of the consequences of
conduct. Whenever a question concerning conduct
arises, we instantly proceed to ponder upon the con-
sequences. We may be sure that those causes con-
trolling conduct, which are the only ones we are ever
conscious of obeying, are the only ones we, in fact,
ever obey or ought to obey.

The illusion, so to speak, by which we are led to
imagine that conscience is a special faculty bestowed
upon us arises, I apprehend, from the instantaneous
action of reason in many cases. When we reflect
that during the years of childhood we were daily
taught that we must do certain things, and must not
do certain other things, and that ever since we have
been habitually practising upon precepts thus ac-
quired and upon others formed by ourselves, we need
not marvel at the rapidity with which we go through
the mental acts necessary to direct our ordinary
conduct. It is analogous to the like rapidity with
which we exercise our bodily muscles. The action
seems spontaneous and instinctive.

What I have been saying tends to explain the
peculiar significance of the word ought which has
been the subject of much discussion. That we have
a feeling well enough described as the " sense of
ought1' I readily agree. It suggests to us an immedi-
ate pointing of our conduct in a certain direction.
It gives no reason, but assumes to speak, as it were,
from its own authority. This arises, I imagine,

154 Law, Its Origin

from the immediate recognition of the moral quality
of actions which have been many times in our
thoughts. As just mentioned, in childhood we were
taught innumerable things, which we must, or must
not, do, and since the period of childhood we have
been teaching ourselves, with the aid of experience
and reason, similar lessons, and thus we have been
forming vast classifications of such things, and when
in the course of our daily lives the temptation, the
impulse, the occasion for doing any one of them arises,
we do not go through any consideration of the con-
sequences which may flow from the contemplated
conduct ; all questions concerning its propriety have
already been met and answered by early instruction
or self -discipline; the act contemplated is at once
perceived as falling within a class, the distinguishing
characteristic of which is that it ought, or ought not,
to be done; oughtness or ought-notness is the quality
of the class, and affects the mind immediately, in
like manner as the qualities of physical objects, such
as whiteness, or smoothness, or hardness. This
instantaneous recognition of the quality of actions
founded on early teaching or self-discipline is, I
apprehend, the feeling akin to the voice of conscience,
which is often called our moral sense, or the sense
of ought, or ought not. The utility of such a guide we
readily understand. Were it necessary for us in our
ordinary conduct to be pondering upon possible
consequences at every point, life would be the scene
of constant perplexity. The conclusions of reason
tested by countless experiences, arranged and classi-
fied, are like the digested wisdom of a body of ad-

Growth and Function 155

judications in the law. The habits of our personal
lives, like the customs of social life, become the
repositories of the numberless conclusions of experi-
ence. They are really the conclusions of reason
founded upon the consideration of conduct, but they
so instantaneously inform us as to what is to be done
that we are not conscious of any deliberation and
seem to be commanded by some mysterious inward
monitor.

The word ought has its correlative in right. I ought
to do whatever it is right for me to do ; but right is
more properly descriptive of the intellectual con-
clusion of reason, while ought imports the sense of
obligation to govern conduct in accordance with
that conclusion.

The reality and significance of the divisions I
have made of the field of conduct are well illustrated
by a comparison of the meaning of the words just
and ought. Ought, as we have seen, is the voice in
which conscience speaks; but what is the precise
significance of just ? What is justice ? There has
been much uncertainty upon this point. To some it
has seemed to import a sublime attribute, almost
an emanation, as it were, of the Deity, recognisable
by an innate moral sense. Some regard it scarcely
more than a synonymous expression of what is
right or ought to be done. But the attempt to
form a conception of some absolute attribute which
would properly be named justice is an abortive
one. All we know is that certain acts are called
just, and we feel them to be just. The difficulty
is in saying what things, and what only, belong

Law, Its Origin

to that class. Certainly all right things are not
properly called just. It is right to aid the dis-
tressed, to go to church, to cherish one's friends,
but such acts do not possess the quality which
justice denotes. If a man indulges to excess in
intoxicating drinks, or engages in any other vice
involving himself alone, we should say that his
action was very wrong, but we would not call it
unjust. Do unto others as you would that others should
do unto you, would satisfy the sentiments of love and
charity, but not that of justice. Justice, in its
primary signification, comes into play only in
respect to that part of the conduct of an individual
in which others are concerned, but yet not all of
that falls within its sphere. There are a multitude
of minor customs and observances of life in which
the word is not well employed. The disregard of
common social obligations would not excite the sense
of injustice. It is the matters of graver importance
of which the law takes cognisance that fall within
the field where justice has sway. It has relation to
that body of rights which the law actually enforces,
and which is called in the Roman Law by the word
from which it is derived, jus. Hence the term
jurisprudence, which is the science of legal justice—
that is, of justice so far as it is enforced. And yet
justice and law are equivalent words. We say
sometimes, very properly, that a law is unjust,
meaning that it is not what it ought to be, but
there is no point of view from which we can criticise
justice.

Justice considered as a sentiment is the sense of

Growth and Function 157

what ought to be done by one to another, and this
is, necessarily, what one might fairly expect from
another — that is, what is customarily done, for no
one would think it justice to require from one any-
thing not in accordance with custom. The occasions
which call justice into activity are those in which
there are differences between men, assertions of
rival claims, irritations, and premonitions of strife,
or actual strife. It is then that the need is felt of
something which will allay' hostility and bring about
peace. This can not be done by mere force. You
may let contestants fight it out until one has con-
quered the other, but this will not allay the irri-
tation; it may serve only to fan the flame and
induce preparation for another struggle. Nor will
it be of any avail to imprison the contestants. The
quarrel will be taken up by families, and friends;
but if that one thing were done which all — excepting
perhaps the contestants — will regard as the thing
fit to be done under the circumstances, the strife
would be ended. The contestants could not con-
tinue it, for they could retain no sympathy or aid,
and would be denounced on all hands as disturbers
of the peace. Now there is one thing in such cases
which all would think fit to be done, and that is
what all, in general, would expect to be done, and
this, as I have reasoned out at length, is a compli-
ance with custom. But if the custom be doubtful,
what then? This is the case in very many disputes;
it is what the contestants are quarrelling about.
The thing to be done is to ascertain the custom and
conform to it. This is precisely the thing for which

158 Law, Its Origin

courts were established, and hence they are called
courts of justice. This strict limitation of the word
justice to such matters as the law takes cognisance
of must be enlarged to take in other cases in which
the word justice is used in an analogous sense.
There may be disputes of which the law takes no
notice. One man may have impugned the character
of another and a challenge has passed ; the seconds
attempt to bring about a reconciliation without
success. Each is prejudiced in favour of his princi-
pal; the intervention of third parties is accepted,
and they ascertain as nearly as possible which of the
combatants has made the first departure from cus-
tom, and dictate the mutual withdrawals and repara-
tions which, in their opinion, should compose the
difference, and all say justice has been done.

The absolute supremacy of the rule of custom in
determining the character of conduct is well shown
by one of the common employments of the word
justice. Suppose a law be enacted making it a
misdemeanour for a man to enter upon the land of
another after the other has, by notice in writing, for-
bidden him to enter, and the person forbidden goes
upon the land to recover some cattle belonging to
him who have strayed upon it and are doing mischief.
He is prosecuted and fined. The law has been exe-
cuted, but all would say that injustice has been
done. Justice, therefore, is something which sits
in judgment even on the law. But what kind of law
is it which thus sometimes operates to inflict injus-
tice instead of doing justice? Not that unwritten
law which springs from custom, but that written

Growth and Function

enactment which a few men called legislators frame.
How seldom do we find anything but satisfaction
with the judgments of our courts enforcing the
unwritten law of custom? Suppose the trespass
upon land just mentioned had been left to be re-
dressed by an ordinary suit to recover the damages
occasioned by it. The judge would have instructed
the jury that the plaintiff was entitled to a verdict
for whatever actual damages he had suffered, and
the jury would have accorded him six cents, and
all would feel that justice has been done.

What is it that gives to the word justice its deep
and august significance — its supremacy among the
moral sentiments? I think a sufficient answer to
this question is found in what I have said of the true
nature of custom. When we reflect that the lives,
peace, and comfort of men from the infancy of the
race have been threatened and disturbed by the
conduct of one individual exciting the resentment
and passion of another and prompting retaliation
and revenge, and that the only escape from the
terrors and fears thus arising has come from the
doing of that thing which all agree is fit to be done,
and that to this thing the word justice is given, we
can understand the power and solemnity with which
the word is invested. It imports the end of strife
and violence and the incoming of satisfaction and
peace, and as it is the only thing which will bring
this satisfaction and peace, its dictates are supreme
and final, admitting of no appeal. Why does not
the written law in all cases affect us with the same
reverent regard? Why do we feel at liberty some-

160 Law, Its Origin

times to denounce a regularly enacted statute as
wrong, tyrannical, and unjust? It is because it is
but the product of the will of one or a few men,
and is liable to be affected by the ignorance, passion,
and error to which their judgments are subject; but
there is no ignorance, passion, or error in those
conclusions of wisdom, tested by the experience of
ages, which lie imbedded in the customs of life.

We here again encounter a certain feeling of dis-
appointment in finding Justice, which we have been
wont to regard as an attribute almost of Divinity,
so closely identified with the mere following of
custom. We would have it something lofty, eternal,
and unchangeable, but we find it, or rather its stand-
ards, shifting as custom shifts. This phenomenon,
in the view of some great minds, has tended to de-
throne Justice from its lofty seat. It provoked the
misanthropy of Pascal into some striking exaggera-
tions. He says :

"In the just and the unjust we find hardly anything which
does not change its character in changing its climate.
Three degrees of elevation of the pole reverse the whole of
jurisprudence! A meridian is decisive of truth, or a few
years of possession! Fundamental laws change! Right has
its epochs ! A pleasant justice that, which a river or a mountain
limits! Truth on this side the Pyre'ne'es, error on the other!'"

But he hinted at a profound truth when he said :

"Custom is a second nature which destroys the first. Why
is not custom natural? I am greatly afraid that nature
itself may be only a first custom, as custom is a second
nature.1"

1 Pascal, Pensees, partie i., art. vi.

Growth and Function 161

But the change is not in justice itself, but in the
things to which it relates. If we remember that
thought is the product of the action of the environ-
ment on our organs of sense, and that the environ-
ments and the constitutions of men are everywhere
different, thoughts must be different and customs
different. This is what separates man into different
national groupings, and unites man with man in the
separate groupings. The genial philosophy of Herod-
otus, springing from his communion with men rather
than from solitary contemplation, took a different
view of custom. He is thus quoted by Sir William
Hamilton:

" The whole conduct of Cambyses toward the Egyptian gods,
sanctuaries, and priests, convinces me that this king was in
the highest degree- insane, for otherwise he would not have
insulted the worship and holy things of the Egyptians. If
any one should accord to all men the permission to make free
choice of the best among all customs, undoubtedly each
would choose his own. That this would certainly happen
can be shown by many examples, and, among others, by the
following: The King, Darius, once asked the Greeks who were
resident in his court, at what price they could be induced
to devour their dead parents. The Greeks answered, that to
this no price could bribe them. Thereupon the king asked
some Indians who were in the habit of eating their dead
parents, what they would take not to eat but to burn them;
and the Indians answered even as the Greeks had done." l

And Herodotus added that Pindar had justly en-
titled Custom as the Queen of the World.

In associating Custom with Justice, therefore, we
do not dethrone the latter, but seat Custom beside

» Hamilton's Lectures on Metaphysics, lecture v., p. 60.
ii

1 62 Law, Its Origin

her. Justice is the felt necessity of doing that which
secures order and peace. Custom furnishes the rule
which answers to that necessity. The imperious
necessity of justice is acknowledged even by those
who hate it. The bad must fly to it as well as the
good. The footpad plying his avocation on Hounslow
Heath, who filed a bill in equity to compel his pal
to give an account of the purses he had taken, had
an impregnable case on grounds of justice as between
himself and his confederate, though he had mis-
taken his forum. Fisher Ames, in a celebrated de-
bate upon the treaty with Great Britain, arguing
that the carrying out of that treaty was required by
a regard for justice, well described the force of that
obligation :

" If there could be a resurrection from the foot of the gallows,
if the victims of justice could live again, collect together, and
form a society, they would, however loath, soon find them-
selves obliged to make justice, that justice under which
they fell, the fundamental law of their State." i

Justice is, therefore, not an absolute, but a relative
virtue, finding its play in that field of our conduct
which, according to the division I have employed,
relates to our dealings and intercourse with each
other in society, and enforcing in that field the things
necessary to the existence of society. This existence
is assured when, and only when, each receives from
all the treatment he may fairly expect. Then men
love to live together; otherwise they fly apart as
if charged with resinous electricity. Justice may
therefore be defined to be the principle which dic-

1 Fisher Ames, vol. ii., p. 61.

Growth and Function 163

tates that conduct between man and man which
may fairly be expected by both, and as none may
fairly expect from another what is not in accordance
with custom, justice consists in the compliance with
custom in all matters of difference between men.
It is the right arm of Peace and the antithesis of
Force. This accords with the definition of the
Roman Law — constans et perpetua voluntas suum
cmque tribuendi. To each his due; but as we can
know the due of each only from the common feeling
of what is due, and this is dependent upon custom,
the identity of justice with conformity with custom
is implied.

The comparative significations of justice and right
here become apparent. I have heretofore said that
conscience is the supreme and final arbiter over the
whole field of conduct, while justice is concerned
with that part of it only, which relates to our deal-
ings with each other. The dictate of conscience
is properly expressed by right, and this, therefore,
is a larger term than justice. Right includes the
just. Whatever custom pronounces to be just,
conscience in general accepts and declares to be
right; but in the field of purely private conduct
justice has no concern, and what is here right, is
not properly described as just, and although in all
ordinary cases conscience declares the just to be
right, there may be an exception. It is this possi-
bility which gives rise to one of the difficult questions
in casuistry, namely, whether it can be right under
any circumstances to violate a promise upon which
the promisee has acted.

164 Law, Its Origin

What is the difference between the words must
and ought f They are sometimes used in senses which
have no ethical significance. Either word may be
employed in common speech to indicate the necessity
of some particular instrumentality to some particular
object. Thus I may say I ought to have, or I must
have, a sharper knife to cut this meat, and there
is no important distinction between the meanings
of the words when thus used. But there is a differ-
ence when they are used in their ethical senses;
there is a difference which the dictionaries do not
explain, and which seems subtle and obscure. I
think that the obscurity will be cleared up by stating
that these words relate respectively to the two
principal divisions of the field of conduct. Where
the conduct in question consists of transactions in
which the interests of more than one are concerned,
must is more properly employed. Such conduct is
governed in part by the law and in part by the other
rules of custom, and the sanction or obligation
attached to them is external to the individual. It
is an external force over which he has no control,
which he feels bound to obey without stopping to
consider what the consequences may be. The law
tells me I must, not that I ought, and I say to myself
— I must do this, or I must not do that, because the
law in the one case commands, and in the other
case forbids. And it is the same with those obliga-
tions of custom which are not enforced by law. If
I have accepted an invitation to dinner, but do not
wish to go, I feel an external force pressing me to
go, and I feel that I must go. The question of con-

Growth and Function 165

sequences is not ordinarily in these cases to be
considered. I must obey the law without regard to
consequences, and social custom as well, although
the obligation is not in the latter case usually so
rigid.

But when we come to the field of private personal
conduct the case is different. Here we feel no
external authority speaking in the language of com-
mand. Here conscience has an exclusive juris-
diction, and its language is not "you must" or "you
must not," but "you ought" or "you ought not."
Nor are consequences felt to be immaterial here,
on the contrary, the decision is arrived at as the
result of a survey of all ' the consequences. The
difference between the words comes into strong
relief when they stand, as they sometimes do, in
opposition to each other. Although private and
personal life is the immediate and principal sphere
of the activity of conscience, yet conscience as the
ultimate governor of our entire conduct has a
supervisory jurisdiction over the commands of
custom and even of law. In ordinary cases conscience
tells me to obey both, for both are in general neces-
sary, or contributory, to the highest good; but
sometimes it calls a halt, and advises a wider
survey of consequences, and possibly disobedience.
We can, indeed, hardly imagine conscience as ad-
vising disobedience to the whole body of the un-
written law, but particular enactments may easily
be imagined, and perhaps found, which conscience
would say might well be disregarded, and to over-
throw the existing rulers and substitute new ones is

166 Law: Origin, Growth, and Function

a right which in certain cases Americans cannot
deny. In such cases, "I must" yields to "I ought.'*
I am a military officer and am challenged to fight
a duel. I feel that I must accept it, but conscience
may interpose and change the feeling to "I ought
not." The external authority of custom, even when
not enforced by law, carries with it in most cases
the superior power; "I must" is more likely to be
obeyed than "I ought," but with the men of the
highest mould the obligatory force of ought is equiva-
lent to that of must, and the words are interchange-
able. Alexander Hamilton gave a pathetic picture
of the struggle between these rival sentiments when,
having on many previous occasions borne his testi-
mony against the practice of duelling, he said on
the eve of his fatal meeting with Burr, and in the
last words he ever wrote: "The ability to be in
future useful, whether in resisting mischief or in
effecting good, in those crises of our public affairs
which seem likely to happen, would probably be
inseparable from a conformity with public prejudice
in this particular." 1

1 Hamilton's Works, vol. viii., p. 628.

LECTURE VII

HAVING completed the survey I designed of the
whole field of human conduct with the view of
ascertaining the causes which in point of fact con-
trol and regulate it, it may be well to set forth in
the form of a summary the general conclusions
which that survey seems to justify and the steps by
which it is reached.

Conduct consists in some physical movement of
the body, and it is of such movements only that the
law takes direct notice, although in some exceptional
cases where the nature of an act is qualified by the
intention which prompts it, it may inquire as to
that intention. Man has thoughts or feelings moved
by the action of the external world upon his physical
constitution which necessarily impel him to action,
and inasmuch as the constitutions of men are similar,
and the environments, in the same society, similar, the
actions of men in the same society are similar, and
conduct is consequently necessarily exhibited in the
form of habits and customs.

Man learns by experience that all action is product-
ive, in its consequences, of either pleasure or pain,
and, by a natural law, he expects that the same
conduct, when repeated, will produce the like con-
sequences. The motive to all action is to enjoy

167

1 68 Law, Its Origin

pleasure or to avoid pain, and he can know what
will afford him pleasure or relieve him from pain
only by attention to the consequences of his conduct.
The study of the consequences of conduct is there-
fore the first, as it is the last, in which man is forever
in every waking moment engaged. From this study
he learns that certain kinds of conduct — that is,
certain actions, — produce pleasure, and that others
produce pain. These he classifies and is moved in
his conduct to repeat the former and avoid the latter.
He learns, however, that while the immediate con-
sequences of some acts are pleasurable, they yet re-
sult eventually in a greater aggregate of pain, while
others which have consequences immediately painful
produce eventually a larger sum of pleasure, and he
learns to forego the immediate gratification of his
natural desires and tendencies in the hope of securing
a more distant but larger good, or of escaping a
more distant but greater pain; that is, he restrains
and governs his conduct according to his knowledge
or judgment of its consequences. Here we have a
rule of conduct. When man acts in pursuance of
immediate natural impulse, he acts without rule;
but when he follows a teaching or principle formed
by a generalisation of the consequences of all con-
duct open to his observation, and restrains his
impulses in accordance therewith, he obeys a rule.

The phenomena of the development of this funda-
mental law require us to divide the field of conduct
into two parts by separating that which affects
only the individual acting from that in which his
action affects others. In the first, man has ever

Growth and Function 169

been and still is free from external restraint. He still
acts according to rule, but that rule is furnished by
his judgment of the consequences of conduct in their
operation upon himself alone — that is, according to
his reason, or what we call conscience, — and a survey
of this field with an arrangement of the different
varieties of conduct according to their consequences
constitutes one branch of the science of ethics. The
other field, the social one, differs only in this, that
the individual finds that unless he regulates this part
of his conduct in accordance with the fair expecta-
tions of others, he will suffer punishment of some
sort from them, and this supplies an external re-
straint as a motive to induce him to shape his conduct
in accordance with such expectation. The reason
why he thus governs his conduct is that if he fails
to do so he is likely to suffer punishment or disap-
pointment from those whose expectation he dis-
appoints, and this compels him to take notice of
what that expectation is ; he finds that others expect
him to act as he expects others to act in accordance
with custom, and custom thus becomes the law in
this field of conduct. The only means of enforcing
this law of custom in those states of society which
precede that in which it takes on an organised form
is what is called self-help aided by social sympathy
and other social influences. The individual takes
the law, so to speak, in his own hands, and by in-
flicting punishment on those who violate custom
creates the motive for yielding obedience to it.
This punishment may not be physical or violent.
It is apt to be so where the offence is flagrant, but

1 70 Law, Its Origin

minor offences are punished by social disapproval
manifested in various ways.

A marked change follows the adoption of organised
government. This organisation exists from an early
stage in a simple form for various social purposes,
but its improvement is very largely superinduced
by the felt necessity of doing away with the violence
and mischief of self-help. The men of approved
wisdom or other experts in the knowledge of customs
are employed who declare what custom requires
in cases of dispute, and by degrees society comes
to use means for enforcing their decisions, and
regular law comes into operation. But as this organ-
ised control was reached in order to supplant the
violence of self-help, its action is correspondingly
limited, and is exercised only in the case of those
breaches or alleged breaches of custom which en-
danger the peace of society. The less important
conduct is left to the regulation of custom by the
methods before employed, the expression of social
disapproval and social ostracism.

As civilisation advances, and population, industry,
and wealth increase, the social organisation expands
and advances, and the means for ascertaining and
enforcing custom become more perfect until regular
judicial tribunals are established, armed with the
whole power of the State to directly enforce then-
decisions. The proceedings of these tribunals are
embodied in permanent records, and their decisions
act as authoritative declarations of binding custom —
that is, they become precedents, and thereafter in
cases of litigation where an apt precedent is found it

Growth and Function

is followed without further inquiry, and the pre-
cedents themselves are by the private work of
jurists arranged in scientific form and go to make
up the fabric of substantive law.

In the course of this social progress the more com-
pletely organised State becomes capable of surveying
its own condition and wants, and of perceiving that
justice would be better administered if better pro-
vision in the way of courts and judicial procedure
were made, and if mischievous acts which have not
as yet been publicly punished were declared and
treated as crimes, and that the mechanism of gov-
ernment in all its parts might be improved by new
devices. It forms its will in respect to such concerns,
expresses it in writing, and solemnly declares it by
means of enacted laws. This is the making of Public
Law in which legislation found its first employment,
and which is still its chief, if not its only function.

If we scrutinise the actual process which we
employ to-day in ascertaining the law in any par-
ticular case, we find that if the point in question
be public law, we turn to the statute-book; if it be
private law, we turn to the body of precedents.
The information we thus derive suffices for all cases
of ordinary doubt, and the great body of human
conduct appears as a spectacle of peace and order.
There are exceptions to this, where wrongdoers
intentionally, or the ignorant innocently, violate
the established customs, and there are other excep-
tions where from the novelty of the transactions it
becomes matter of doubt even with experts to what
class the conduct in question belongs. Inasmuch as

i;2 Law, Its Origin

human affairs are never precise repetitions, and the
complicated societies of civilisation are in a con-
dition of constant change, there are, in point of
absolute number, many of such cases, although
they are few when compared with the whole volume
of conduct. They constitute the subjects of litigation
which engage the attention of courts, and if we
follow the discussions there we find the difficulty
to be that there is no known legal class of actions
under which they can be clearly and at once brought,
and the effort of the judge is to find the best rule by
which the case may be determined. In this search
the things considered are the ordinary ways in which
the business, the intercourse, and the conduct of
life are conducted, and whether the conduct in
question is in harmony with them, or, if not, in what
particular it is discordant. This is manifestly a
study of the consequences of the conduct, and if
among them there is found in that conduct any
element which operates to defraud or deceive or
invade the rights of person or property as they are
settled by custom, or to betray trust and confidence,
or in any way to disappoint fair expectation, the
conduct is in violation of custom and is placed in
the class of things condemned by the law. The
final study of the highest court of appeal is, there-
fore, in the last analysis, that same study of conduct
and consequence in which all men are engaged every
day and which began when man first began to act.

Even where the question is one of the interpreta-
tion of written law, involving the meaning of words
and the legislative intent, the things contended

Growth and Function 173

about in argument and decision are the customary
employment of language, the customary motives
of action, and the mischievous departures from
established custom, which the statute was probably
intended to remedy.

The final conclusion of the inquiry, what rule or
rules in point of fact governed human conduct, was
that, so far as social conduct is concerned, custom is
not simply one of the sources of law from which
selections may be made and converted into law by
the independent and arbitrary flat of a legislature or
a court, but that law, with the narrow exception of
legislation, is custom, and, like custom, self-existing
and irrepealable.

The necessary operation and therefore the junction
of law thus defined we found to be the marking out
of the largest area within which each individual
could freely move and act without invading the like
freedom in every other — that is, to insure the largest
possible liberty.

I shall have next to deal with the consequences
of the conclusions thus summarised.

The first which I note is that they involve the re-
jection of the commonly accepted theories of the
law. In speaking in the first of these lectures of the
great number and variety of definitions which have
been given of law, I observed that, however differing
from one another in expression and in the less im-
portant particulars, they might be arranged in one
or the other of two classes, one seeking to establish
law upon the basis of absolute Justice and Right,
and the other making it proceed from the arbitrary

174 Law, Its Origin

command of the Sovereign State; one seeking to
enthrone over human conduct a rule of Order, and
the other a rule of Force ; one fairly represented by
the theory of Natural Law, and the other by the
doctrines of Hobbes, Bentham, Austin, and others
that law is a command. I have some observations
to make concerning each class of these two opposite
tendencies.

Historically the doctrine of the Law of Nature
had its origin with the philosophic jurists of Rome,
or, at least, the first enunciation we have of it came
from them, and by Nature they intended the Author
of Nature, Jove or God. They declared that the
true and fundamental law was in the mind of the
Deity himself when he created the universe. Cicero
sets forth this view in his treatises De Legibus and
De Republica with great nobility of eloquence.
According to him, the fundamental law which com-
mands and forbids is the right reason of Supreme
Jove. Quam ob rem lex vera atque princeps apta ad
jubendum et vetandum ratio est recta summi Jovis.1
This pagan view has been accepted by many Christian
jurists, of whom Blackstone is a good example.
He says :

"This law of nature being coeval with mankind, and dictated
by God himself, is of course superior in obligation to any
other. It is binding over all the globe, in all countries, and
at all times; no human laws are of any validity, if contrary
to this; and such of them as are valid derive all their force
and all their authority, mediately or immediately, from this
original." 2

1 De Leg, ii., 4.
s Bl., book i., p. 41.

Growth and Function 175

Now, in the language of Lord Bacon, "I would
rather believe all the fables of the Talmud and the
Alcoran than that this universal frame is without
a Mind"; but science is the orderly arrangement of
things we can know, and not of things we cannot
know, and I think there is no irreverence in dis-
missing from our attention those theories which
rest upon our feeble imaginations of the Divine
Nature; indeed, I think the term irreverence more
properly belongs to the methods I am declaring in-
sufficient.

"God hath not made" [I am quoting the language of Sir
Thomas Browne] "a creature that can comprehend him; 't is
a privilege of his own nature ; ' I am that I am ' was his own
definition unto Moses; and 't was a short one to confound
mortality, that durst question God, or ask him what he was."1

We must, indeed, in tracing the line of causation
along which the facts of any science are to be ar-
ranged, come finally to some ultimate barrier beyond
which we cannot pass; but we should not too soon
conclude that the barrier has been reached. The
rule of dramatic poetry, not to introduce a God upon
the stage unless a crisis appears demanding the
Divine intervention, should be the rule of philosophy
also:

Nee deus intersit, nisi dignus vindice nodus inciderit.

But the prodigious space which the doctrine of the
Law of Nature has filled in philosophical speculation
as the foundation both of Ethics and Law is itself
a phenomenon to be explained. It could hardly

1 Sir Thomas Browne, Religio Medici, sec. xi.

i/6 Law, Its Origin

have assumed such magnitude unless it were sup-
ported by some great underlying truth, and if the
explanation should not afford a reconciliation be-
tween this theory of law and the views I have
adopted, those views would be open to a doubt
more serious than any I have as yet encountered.

We must turn to the historical origin of this doc-
trine, which, as I have said, first appeared among
the philosophic jurists of Rome. While the territory
of Rome was confined within its Italian limits,
justice was administered in her courts according
to the customs of the city, in which there was a
large element of technicality. This did not prevent
the doing of substantial- justice, for these technicali-
ties and peculiarities inhered in the customs and
thus entered into the contemplations of individuals
in their dealings with each other. But with the
expansion of Roman dominion and the enlargement
of commerce came a great influx of provincials and
foreigners, and extensive dealings between them and
the native citizens. In any litigations arising out
of such dealings it would have been gross injustice
to apply the peculiar civil law of the city. Any
person, whether he be called judge, referee, arbitra-
tor, or by whatever name, whose office it is to settle
disputes between others, must of necessity base his
decision upon what he deems the parties fairly, and
therefore probably, expected from each other, and
in this task, when the dispute is between citizens of
different States having many different customs, he
seeks to find customs and ways which are common
to men without regard to their particular nation-

Growth and Function 177

ality. According to the civil law of Rome, a contract
might not be valid unless some technical formula
were complied with, and consequently Roman citi-
zens would not regard themselves as bound in the
absence of such compliance. But men, as men, of
whatever nation, if they communicate at all, have
means by which they may express terms and con-
ditions and assent and dissent, and where they do
this they expect compliance with their consensual
engagements. A method of treatment in harmony
with these conditions was applied by the Praetor
Peregrinus of Rome in litigations between Roman
citizens and provincials or foreigners, and while the
Praetor Urbanus regarded the Twelve Tables and
the Praetorian edicts, he looked only to the conduct
of the parties, its character and consequences. Two
bodies of laws consequently grew up at the side of
each other, the jus civile limited to transactions
between Roman citizens, and the jus gentium as
wide in its application as the inhabited globe. The
superiority of the latter as a scientific system was
recognised by the Roman lawyers, and the domestic
jurisprudence became from time to time enriched by
borrowing from it many sound precepts. The philo-
sophic jurists, among whom Cicero was a shining
example, when they came to inquire into the nature
of Law, could not find its real foundation in the nar-
row jus civile; but in the jus gentium they found
four characteristic features: (i) that it was not
enacted by any man or body of men, for the Praetor
Peregrinus did not, any more than the modern
judge, presume to make law; (2) that it could not

12

178 Law, Its Origin

be repealed, and was therefore self -existent ; (3)
that its particular rules were reached by the processes
of reason; (4) that it satisfied the universal senti-
ment of justice. Whence did it proceed, and from
what source did it derive its authority? It seemed
inscrutable, and the only answer they could give
to the question was to ascribe the origin and
authority of law to that same Divine Power to which
they attributed the other mysterious phenomena of
the universe, the movements of the heavenly bodies,
the successions of the seasons, the storms and tides
of the ocean. It was Nature or God. Had they
studied the facts of consciousness, and learned that
conduct was necessarily exhibited in the form of
habit and custom, they would have seen that the
origin of law rested in a self-governing principle of
society; and if they had carefully scrutinised the
methods of the judicial tribunals, they would have
seen that it consisted in the study of conduct and
its consequences with the view of determining what
was in accordance with custom or fair expectation,
and that such study was simply the exercise of our
ordinary reasoning powers upon the subject of con-
duct; in this way they would have reached the
enlightening conclusion that law was tantamount to
custom. Any further inquiry would be how and why
our natures were so made as to compel us to think
and act in such a way — an inquiry which would have
baffled them no more than it baffles us.. But in the
law of custom thus reached, they would have found
all the characteristics which they perceived in what
they denominated the Law of Nature. The Roman

Growth and Function 1 79

jurists have conferred upon posterity by their con-
ception of the Law of Nature one great benefit, a
clear apprehension of the fundamental difference
between the written and the unwritten law.

The doctrine which has in modern times divided
with that of the Law of Nature the opinions of
juridical writers is that which defines Law as the
command of the Sovereign power in a State. It was
not at first the product of an original and inde-
pendent inquiry into the nature of law, but was
contrived to answer the supposed exigencies of
political necessity. It is first to be found set forth
in the writings of the celebrated Thomas Hobbes in
the early part of the seventeenth century. He was
a thorough royalist in his political views, and writing
at the time of the struggles against the House of
Stuart, his main purpose was not so much to set
forth a new theory of the ordinary law, as to justify
the exercise of a severe authority in repressing
rebellion against civil government. He was a rigid
as well as a profound thinker, and never shrank
from any of the logical consequences of his main
tenets. His view was that the condition of man
before the organisation of society was a state of an-
archy or war, in which every man's hand was against
his fellow, and that the only way of escape from
such miseries was to be found in organised society,
and that society was the more effective and bene-
ficial the more the corporate power became com-
plete and absolute. His ideal, therefore, was that
of an unlimited and unquestioned supreme public
.authority, preferably, though not necessarily, a

i8o Law, Its Origin

monarchical one. In his view the authority of the
State should be supreme everywhere. Whatever
the State commanded was just, and because the
State commanded it, and whatever it chose to en-
force must be taken to be its command. His defi-
nition of law thus became "the speech of him who
by right commands somewhat to be done or omitted."
Nor did Jeremy Bentham, the next distinguished
supporter of the theory, find his way to its adoption
by a scientific inquiry into the nature of law. He
accepted it because it suited his particular views and
purposes. He was primarily a moralist, and believed
that he had discovered the Summum Bonum in
what he called the principle of Utility, which he
described by the maxim, "The greatest good to
the greatest number." It did not occur to him that,
in the order of nature, happiness could be secured
by man only by his own efforts and discipline in
attending to the consequences of conduct and select-
ing those forms which experience taught him would
secure it. He thought that the pathway to happi-
ness for all men could be found out by one, or a few
wise ones, and man could be compelled to follow it
and thus be made happy by law. He found a great
obstacle in his way ; this was the practice of society
to conform to rules of conduct declared by the
judges. He insisted that they really made the
rules while pretending only to -find them, and made
them without authority, and he came to regard the
unwritten law as a hateful usurpation, and he de-
scribed the common method adopted by the judges
in making use of legal fictions in order to make

Growth and Function 181

legal remedies effectual, as "a wilful falsehood
having for its object the stealing of legislative power
by and for hands which could not, or durst not,
openly claim it." The theory of Hobbes exactly
suited his purpose. If law was a command alone,
the judges would be obliged to look for their law to
the only power that could make an authoritative
command, namely, the Sovereign State, and the great
condition of public happiness would be supplied by
the preparation of a code containing the most wisely
selected rules, and its adoption by legislative enact-
ment. John Austin, whose lectures On ike Province
of Jurisprudence Determined have exercised so wide
an influence, was a disciple of Bentham and a believer
in the doctrine of Utility. But he had not that ab-
horrence of the unwritten law which animated his
master. He believed that ultimately a complete
written code enacted by legislation would be the
perfection of law, but he doubted whether this was
immediately practicable. His diagnosis of the
actual condition of the administration of law seemed
to be that mankind had stupidly and unnecessarily,
as if for the want of competent advice and leadership,
fallen into the blunder of allowing blind custom,
instead of reason, to regulate their conduct, as if
reason were some special faculty which could reach
forward and discover those true principles of law
and government which ought everywhere to be
adopted. The following language employed by him
is indicative of his view:

"Many of the legal and moral rules which obtain in the most
civilised communities rest upon brute custom and not upon

1 82 Law, Its Origin

manly reason. They have been taken froni'preceding genera-
tions without examination, and are deeply tinctured with
the childish caprices and narrow views >of barbarity. And
yet they have been cherished and perpetuated through ages
of advancing knowledge to the comparatively enlightened
period in which it is our happiness to live."

Believing with Bentham that "the greatest good to
the greatest number" was discernible by reason,
and should be made the rule of conduct by positive
law, he made law to consist wholly in command, and
framed his well-known formula : " Every positive law
is set by a sovereign person or by a sovereign body
of persons (a legislature) to a member or members
of the independent political society wherein that
person or body is sovereign or supreme."

This theory and definition of law has an apparent
partial foundation. It properly defines legislation—
that is, law consciously enacted by men, although a
qualification is needed even here; beyond this it
seems to me entirely erroneous. Inasmuch as in the
view I have taken substantially the whole private
law which governs much the larger part of human
conduct has arisen from and still stands upon custom,
and is the necessary product of the life of society,
and therefore incapable of being made at all, the
opposition between this view and the theory of
Austin is irreconcilable. Inasmuch as I have estab-
lished, as I suppose, my own view, I might, perhaps,
regard this opposition as a sufficient refutation of
that theory, but a separate and distinct exposure of
its errors and inconsistencies will furnish additional
confirmation to the doctrine I have supported.

Growth and Function 183

While the Austinian definition encounters diffi-
culty as soon as we come to consider the unwritten
law, Austin felt that his master, Bentham, had fallen
into a gross error in condemning and stigmatising
this branch of law as the product of a fraudulent
usurpation.

He regarded the bulk of this law as a rational and
legitimate system of rules. He felt that it must in
some way find a place under his theory, and his con-
trivance was to assert that the judges made the law
declared by them, and made it, not by any usur-
pation, as Bentham insisted, but rightfully, in
virtue of an authority delegated to them by the
Sovereign. Here, however, he was met by the hard
fact that no one of the long line of illustrious judges
who had occupied the English bench ever supposed
for a moment that he was making law, either by
virtue of a delegated authority or otherwise, and
that all, or nearly all, would indignantly have re-
pelled any imputation of doing it; but he treated
their view with contempt, speaking of it thus: "The
childish fiction employed by our judges, that judiciary
or common law is not made by them, but is a miracu-
lous something made by nobody, existing, I suppose,
from eternity, and merely declared from time to
time by the judges. "*

But where does he find an authority in the judges
to make law in the shape of commands, for certainly
they are not themselves sovereign or a sovereign
body?

His way of meeting this difficulty is by imputing

» Austin § 919

A -

1 84 Law, Its Origin

the action of the judges to the real sovereign. He
declares that an authority to command is delegated
by the sovereign to the judges and that they com-
mand by virtue of this delegation. Both these
assertions are pure assumptions. The closest scru-
tiny can find no such delegation, nor any command
in pursuance of it. Austin concedes that there is no
direct evidence of such delegation, but says that
there is something equivalent to it, namely, the
fact that the sovereign has the power to reject or
disapprove the commands of the judges, and by not
doing so ratifies them. But this is attempting to
prove one assumption by making another, or rather
two others. In the first place, under the familiar
doctrine that ratification is equivalent to an original
authority, it is an indispensable requisite that the
principal should know the act of the agent which he
intends to ratify; but the supposition that the
sovereign person, or sovereign legislature knows
all the decisions of the courts, or any considerable
part of them, is utterly unfounded. To assume it is
not merely to assume a thing which we do not know
to be true, but one which we know to be untrue. The
second assumption is that of a ratification by the
sovereign. What evidence is there of this? None
can be discovered. All we have is the silence of the
sovereign. There is indeed in the law of agency a
maxim that where a principal has knowledge of an
act of his agent and makes no objection to it, it
may be inferred that he ratifies it, and this is the
ground upon which Austin bases his assertion of
ratification.

Growth and Function 185

Let us see to what this reasoning will lead. The
theory, it will be borne in mind, is of the crea-
tion— the origin — of law. Now upon the doctrine
that the sovereign, by his silence, ratifies the acts
of his judges, he must ratify just what they do,
their real action, and nothing else. But they make
no commands at all concerning conduct; they
declare no rule; they simply sit in judgment upon
controversies between litigants in a particular case,
and declare that one shall or shall not pay money
or deliver property, or accord some special relief,
to the other. It might be said by a supporter of
Austin's theory that although this is all they do in
form, yet in fact, inasmuch as they make their
decisions upon grounds and for reasons generally
stated by them, they really declare what must be
regarded as law at least for all like cases. This is a
concession that the sovereign ratifies what they
really do, and this is to declare that by virtue of
some already existing law certain relief shall or
shall not be awarded. What they really do, there-
fore, is not to create law, but to declare that the
law already exists. If what the judges did was to x
declare a law not before existing, the subjection by
them of one of the parties to liability for an infrac-
tion of the law, in a transaction occurring before
the existence of the law, would be an indefensible
outrage. Any one who undertakes to support
Austin's theory encounters here an ugly dilemma;
the law by which the judge makes a decision either
existed at the time of the transaction involved in
the case, or it did not, and was made by the judge;

1 86 Law, Its Origin

if it did exist, the judge did not make it, and the
imagined ratification by the sovereign did not make
it, there being no need of his interposition, express
or implied. If it did not exist at the time of the
transaction, then what the judge has done and the
sovereign ratified is to compel a man to suffer for
the violation of a law committed before the law was
made. No theory of law can stand which involves
such a consequence. Our courts act consistently,
and the record of an action exhibits a perfectly
logical process; but upon the Austinian theory it
would present a revolting absurdity. Let me illus-
trate the operation of that theory. A plaintiff brings
his action in a novel case, never before considered,
alleging certain facts and claiming that by existing
law he is entitled to recover from the defendant a
thousand dollars for an injury inflicted upon him;
the defendant appears and admits the facts alleged,
but insists that by existing law he did only what he
had good right to do. The learned judge finds that
neither party is right in his claim, because, as he
says, there is no existing law applicable to the case,
none having been made; but he is clearly of the
opinion that there ought to be one which would
support the plaintiff's claim, and that it is his duty,
as the delegate of the sovereign, to make it, which
duty he proceeds to perform, but in a most amazing
manner. He does not dismiss the suit and at the
same time declare what in all future like cases the
law shall be, but, regretting, perhaps, the indirect
manner in which he must perform his duty and the
individual suffering he must inflict, he condemns

Growth and Function 187

the defendant to do, what he declares there was no
law requiring him to do, namely, to pay the thousand
dollars.

And yet this definition of law, though it has been
subjected recently to much criticism, is still perhaps
more generally accepted in England and America
than any other. Sir Henry Sumner Maine, whose
writings have commanded so much attention, while
he has pointed out some of its errors, has given to
it his general approval and praise. He declares
that "to Bentham, and even in a higher degree to
Austin, the world is indebted for the only existing
attempt to construct a system of jurisprudence by
strict scientific process and to found it, not on a
priori assumption, but on the observation, compari-
son, and analysis of the various legal conceptions."1
He has partially seen the absurd consequences of
Austin's doctrine of ratification, and says: "It is
a better answer to this theory than Austin would
perhaps have admitted, that it is founded on a mere
artifice of speech, and that it assumes Courts of
Justice to act in a way and from motives of which they
are quite unconscious."2 Such difficulties, though
they moderate, do not by any means destroy, Prof.
Maine's estimate of the correctness of the Austinian
doctrine, and he thinks a more complete under-
standing of the fundamental element of that doc-
trine will conduce to a recognition of, at least, its
theoretical soundness and of its value. This funda-
mental element he makes to be Austin's conception.

» Maine, Early History of Institutions, p. 343.
2 Ibid., p. 364.

1 88 Law, Its Origin

of Sovereignty, to which he invokes especial atten-
tion. He says :

"When, however, it has once been seen that in Austin's system
the determination of Sovereignty ought to precede the
determination of Law, when it is once understood that the
Austinian conception of Sovereignty has been reached through
mentally uniting all forms of government in a group by con-
ceiving them as stripped of every attribute except coercive
force, and when it is steadily borne in mind that the deductions
from an abstract principle are never, from the nature of the
case, completely exemplified in facts, not only, as it seems
to me, do the chief difficulties felt by the student of Austin
disappear, but some of the assertions made by him, at which
the beginner is most apt to stumble, have rather the air of
self-evident propositions.1 "

Let me then give that close attention to this concep-
tion of sovereignty which Prof. Maine commends,
and to his statement of it. He says that Austin's
doctrine of Sovereignty

"is as follows: There is, in every independent political com-
munity— that is, in every political community not in the habit
of obedience to a superior above itself — some single person or
some combination of persons which has the power of compelling
the other members of the community to do exactly as it
pleases. This single person or group — this individual or this
collegiate Sovereign (to employ Austin's phrase) — may be
found in every independent political community as certainly as
the centre of gravity in a mass of matter. . . . This Sovereign,
this person or combination of persons, universally occurring in
all independent political communities, has in all such com-
munities one characteristic common to all the shapes Sov-
ereignty may take, the possession of irresistible force, not
necessarily exerted, but capable of being exerted.2 "

1 Maine, Early History of Institutions, p. 362.

2 Ibid., pp. 349-350-

Growth and Function 189

And further, he says :

"The way in which Hobbesand he (Austin) bring such bodies
of rules as the Common law under their system is by insisting
on a maxim which is of vital importance to it — 'Whatever
the Sovereign permits he commands.' Until customs are
enforced by Courts of Justice, they are merely 'positive
morality,' rules enforced by opinion, but, as soon as Courts
of Justice enforce them, they become commands of the
Sovereign, conveyed through the Judges, who are his dele-
gates or deputies.1 "

But this explicit statement of Austin's conception
of sovereignty serves only to emphasise its falsity.
It is useful only as a foundation for the proposition
that the law declared by the judges is really made
by them as the agents of the sovereign who ratifies
their action and is thus adopted. The doctrine of
ratification necessarily assumes power in the princi-
pal to perform the act. I think I have sufficiently
exposed already the error in this notion of law-
making by the assumed ratification of a sovereign
possessing an assumed absolute power, but I may
show that Maine's own argument refutes his own
proposition. Let me throw that argument into
syllogistic form. This is the first premise in the syl-
logism: Whatever the sovereign permits he com-
mands. The second premise is — He permits courts
of justice to sit and decide controversies by law
which they declare to be already in existence',
and the consequence is inevitable: he permits the
courts of justice to so sit and declare. The declara-
tion of the judges is the declaration of the sovereign.

1 Maine, Early History of Institutions, pp. 363-364.

190 Law: Origin, Growth, and Function

He commands it for he permits it, and therefore the
sovereign declares that the law is not made, but that
it already exists! Bentham may insist, as he does,
that this declaration by the judges is a "fraudulent
pretence" to conceal their usurpation of legislative
power; Austin may aver, as he does, that it is a
"childish fiction," but it is the "fraudulent pre-
tence," or the "childish fiction" of the sovereign
himself. This is the severe logical consequence of
Maine's defence of Austin's conception of sover-
eignty. It establishes, not his definition of law,
but the contrary one.

LECTURE VIII.

THERE are many who, though not accepting the
theories of Bentham and Austin, have yet a feel-
ing that the distinction between finding and making
the law in a truly novel case is but a fanciful one,
and that what is really done by declaring the law in
such a case, it being before unknown, is to make it;
they admit the seeming injustice of holding persons
responsible for a violation of law not existing at the
time of the action in controversy, but think it is no
greater than to hold them responsible for a violation
of a law at the time unknown. Such doubts deserve
respectful treatment. Upon the view that law is
custom, the maxim that all are presumed to know
the law is well founded and reasonable. Custom is
the one thing that all may safely be presumed to
know. It is — what is more and better than known
— felt. There is no injustice, therefore, in a rule
which subjects men to the obligation of existing
custom. There will be some cases of real doubt, but
in all such cases the act or conduct concerning which
the doubt exists really belongs to some class. It
is either something which accords with fair expecta-
tion, or does not so accord, and the point is decided
by selected experts. As in a game of ball or other
athletic game, things will be done on one side which
will be disputed on the other, and the referee will

191

i92 Law, Its Origin

be called upon to decide. His decision will be that
the thing objected to was right or wrong according
to existing rules, and no one will think that he makes
the rule. The case may be an entirely novel one and
difficult of determination, but the defeated party
suffers no injustice because of this difficulty. Both
sides had equal knowledge of the rules and the exist-
ence of difficulty was the same burden to each.

In the great game of society, as in the little one of
ball, all the players are justly assumed to know the
rules. What is really done in a novel case is the
same thing that is done in every disputed case.
The features of the transaction are subjected to
scrutiny in order to determine to what class it belongs.
The classes are not made; they exist in existing
custom. There may be a difficulty in ascertaining
the class growing out of the novelty of the case.
Some features of the transaction suggest that it
should be placed in one class, others that it should
be placed in another. The case is in no manner
different from that in which a new plant or animal
is discovered bearing resemblances to more than
one species. Careful observation is requisite in order
to determine under which class it should be ranked
and naturalists may differ about it; but the eventual
classification is determined by the qualities which
are really found in it, not by any qualities artificially
imputed to it. So in the case of a novel transaction.
The conduct drawn in question is either right or
wrong according to its own qualities ; that is to say
that its true legal character is already fixed, and the
task of the expert — that is, the judge — is to find these

Growth and Function 193

true determining qualities, and when he finds these
he finds the class to which the transaction belongs,
and therefore finds the law. He would misconceive
his task if he should say that it was a new case and,
without a correct ascertainment of its determining
features, should arbitrarily declare it to belong to a
class under which its real qualities did not bring it.
Should he do this he would be making the law, and,
indeed, the judge can only make the law by making
a wrong declaration — that is, he can only make
erroneous law. If, without scrutiny, he should
arbitrarily assign the case to its right class, he would
correctly declare the law, but he would not make it.
Thus far I have accepted the proposition lying at
the basis of Austin's theory of sovereignty, that
which the sovereign permits he commands, as true;
but only for the sake of the argument, and in order to
show that the consequences deduced from it do not
follow ; but is it true in fact ? Is it true that in every
independent human society there is a sovereign
power so absolute as to justify the inference that
what it permits it commands ? To make it sure that
I am stating the proposition fairly, I give it in the
language in which Prof. Maine sets forth the funda-
mental position of the Austinian doctrine, namely,
that "in every independent community of men
there resides the power of acting with irresistible
force on the several members of that community.
This may be accepted as actual fact."1 Prof. Maine
here fully commits himself to the assertion of Austin,
that in every independent State there is in the

• Maine, Early History of Institutions, p. 357.
13

i94 Law, Its Origin

sovereign or sovereign body the power of doing
what he, in another passage already cited, declares
"exactly what he pleases." An assumption more
prodigiously untrue could scarcely be imagined.
What ! A power in an earthly sovereign or sovereign
body, to control the conduct of all the people in a
nation "exactly as it pleases"? This would be a
power to make conduct, to construct life, to create,
if the sovereign so pleased, a new world! There is
one Being alone to whom such a power can be
assigned — one Being alone who can do "exactly as
He pleases."

It is quite needless for me to expose by any minute
inquiry into the history of societies the error of the
assumption, inasmuch as Prof. Maine immediately
proceeds, quite without knowing it, to refute both
Austin and himself. He goes on to say:

"An assertion, however, which the great Analytical Jurists
cannot be charged with making, but which some of their
disciples go very near to hazarding, that the Sovereign person
or group actually wields the stored-up force of society by an
uncontrolled exercise of will, is certainly never in accordance
with fact. ' ' [The italics are mine.] ' ' A despot with a disturbed
brain is the sole conceivable example of such Sovereignty.
The vast mass of influences, which we may call, for shortness,
moral, perpetually shapes, limits, or forbids the actual direction
of the forces of society by its Sovereign.1"

Here we have it that while the sovereign actually
possesses absolute, unlimited power, he never exer-
cises it! How then, I beg to inquire, do we know

* Maine's Early History of Institutions, pp. 358-359.

Growth and Function 195

he possesses it? The only evidence we have of
the possession of any power by a sovereign person
or body is the actual exercise of it by such person or
body. But Prof. Maine again relieves us of the
task of detailed refutation by the language of the
citation just made. "The vast mass of influences
which we may call, for shortness, moral, perpetually
shapes, limits, or forbids the actual direction of the
forces of society by its Sovereign." It is hardly
worth while to debate what sort of a thing sover-
eignty is which is perpetually shaped, limited, and
forbidden by a "vast mass of influences. " If there is
a "vast mass of influences" which limits and forbids
the exercise of sovereign power by a monarch or a
legislature, they are the real sovereign, and what
other name is there for them than custom? Austin's
conception is sovereignty, plus a variety of things
which prevent it from being sovereign. It is indeed
what Prof. Maine styles it, "the result of Abstrac-
tion," and he may add, an abstraction which de-
prives the word, and the theory in which it plays
so essential a part, of any significance or importance.
To assert complete sovereignty in order to con-
struct a theory, and then to say that the assertion
is not in fact true, is to commit felo de se. The
wonder is that Prof. Maine, after dealing as he does
with Austin's theory, still continues to regard it as
of such high value as a contribution to jurisprudence.
The theory possesses for him the great attraction
of simplicity, and with an evident desire to find
support for it in the quarter where a theory must
find support or be dismissed — that is, in the world

Law, Its Origin

of real fact, he casts a glance over the history of
political societies and the present condition of social
government. He first describes the sort of rule
which obtains, or has obtained, in a recent native
Indian empire, that of Runjeet Singh, in the north-
- western region of India, called the Punjab. No-
where has there been a more absolute despot, and
one might think the monarch a fitting example of
a sovereign who could do "exactly as he pleased."
Prof. Maine thus describes his empire:

" After passing through every conceivable phase of anarchy
and dormant anarchy, it (the Punjab) fell under the tolerably
consolidated dominion of a half-military, half-religious oli-
garchy, known as the Sikhs. The Sikhs themselves were after-
wards reduced to subjection by a single chieftain belonging to
their order, Runjeet Singh. At first sight, there could be no
more perfect embodiment than Runjeet Singh of Sovereignty,
as conceived by Austin. He was absolutely despotic. Except
occasionally on his wild frontier, he kept the most perfect
order. He could have commanded anything; the smallest
disobedience to his commands would have been followed by
death or mutilation, and this was perfectly well known to
the enormous majority of his subjects. Yet I doubt whether
once in all his life he issued a command which Austin would
call a law. He took, as his revenue, a prodigious share of the
produce of the soil. He harried villages which recalcitrated
at his exactions, and he executed great numbers of men.
He levied great armies; he had all material of power and
exercised it in various ways. But he never made a law. The
rules which regulated the life of his subjects were derived
from their immemorial usages, and these rules were admin-
istered by domestic tribunals, in families or village-communi-
ties— that is, in groups no larger, or little larger, than those
to which the application of Austin's principles cannot be
effected, on his own admission, without absurdity.

Growth and Function 197

" I do not for a moment assert that the existence of such a
state of political society falsifies Austin's theory, as a theory.
The great maxim by which objections to it are disposed of is,
as I have so often said before, ' What the Sovereign permits, he
commands.' The Sikh despot permitted heads of households
and village-elders to prescribe rules, therefore, these rules
were his commands and true laws.1 . . . The theory remains
true in such a case, but the truth is only verbal." 2

I cannot think this argument entirely creditable
to Maine's powers as a reasoner. What sort of truth
is that which is only verbally true? A theory which
is consistent with the facts is a true theory, pro-
vided it well explains the facts ; but a theory which
is inconsistent with the facts is false, even as a theory ;
and to say that it remains verbally true is to say
something unintelligible. That the instance given
by him renders the theory he endeavours to support
ridiculous, at least at first blush, he admits, for he
says: "An Eastern or Indian theorist in law, to
whom the assertion was made that Runjeet Singh
commanded these rules, would feel it stinging him
exactly in that sense of absurdity, ' ' etc. Nevertheless,
in Maine's opinion, it is not really ridiculous; and
all that is needed to reconcile it with sense and
truth is to carefully bear in mind the fundamental
assertion admitted to be untrue, "What the sover-
eign permits he commands." I cannot see why we
may not with as much logical propriety say, "What-
ever the peasant permits he commands," and thus
prove the peasant to be the author of law. The
only objection to it is that we have no evidence that

1 Maine's Early History of Institutions, p. 381. ' Ibid., p. 382.

198 Law, Its Origin

the peasant has the absolute power which the propo-
sition tacitly assumes, but that is precisely the
same difficulty under which the assertion of Austin,
thus defended by Maine, labours. But the real
purpose for which Maine introduces this example
of the empire of Runjeet Singh is to show that
while with some of the races of men the system of
Austin would be out of place, in others it would find
substantial support, and if not now in fact true,
would eventually become true. He takes the
dominion of Singh as a type of "all Oriental com-
munities in their native state."1 Here we have
it that over the greatest part of the world despots
have ruled for ages, and to a less extent are still
ruling, each being of a character more nearly than
anywhere else possessing the attributes of Austin's
sovereign, namely, the power to "do exactly as he
pleases," and yet here more absolutely than any-
where else the law has consisted of immemorial
usage, the sovereign never pretending to make a law!

The early Aryan communities, the originals of all
the States of the Western world, are regarded by
Prof. Maine as representing all social government
not of the Oriental type. The early government of
these he finds to be the village council, but he also
finds that it does not make laws, saying :

" If the powers of this body must be described by modern
names, that which lies most in the background is legislative
power, that which is most distinctly conceived is judicial power.
The laws obeyed are regarded as having always existed, and
usages really new are confounded with the really old."2

» Maine's, Early History of Institutions, p. 382. 2 Ibid., pp. 388-389.

Growth and Function 199

a not unfair description of our own unwritten law.
Up to this point, Prof. Maine finds no appearance of
law in the shape of a direct command of the sover-
eign, either in the Eastern or Western world, but he
observes the tendency very manifest in history, of
one Aryan community, to aggrandise itself by the
conquest of those adjoining it, to enlarge the area
of its dominions to the magnitude of an extensive
territorial empire, and then to proceed to " triturate"
(to borrow his expressive phrase) the various local
communities into a consolidated and centralised
nation. The Roman Empire was the first great
example of this movement, and the States of modern
Europe are other instances of it.

From these generalisations Prof. Maine draws a
remarkable conclusion, and, in my view, as erroneous
as it is remarkable. It is that in the passage of these
local communities into an extended and centralised
empire the laws distinctly altered their character;
that while before the passage they rested upon cus-
tom, and were obeyed almost blindly and instinct-
ively, seeming to be parts of mere order, after the
passage they were broken up and replaced by rules
directly emanating from the sovereign, and the
power behind them assumed the attitude and char-
acter of purely coercive Force; that the theory of
Bentham and Austin, while wholly inapplicable to
Oriental conditions and to the primitive social
conditions of Europe, did represent those in Europe
which came into existence after the change; that
legislative activity has rapidly increased and is
increasing, and that eventually Austin's formula

2oo Law, Its Origin

that law is the command of the sovereign will be
as true in fact as it is elegant in theory. I must
give in his own language the auspicious future
which he predicts for this theory:

"But, if the Analytical Jurists failed to see a great deal which
can only be explained by the help of history, they saw a great
deal which even in our day is imperfectly seen by those who, so
to speak, let themselves drift with history. Sovereignty and
Law, regarded as facts, had only gradually assumed a shape in
which they answered to the conception of them formed by
Hobbes, Bentham, and Austin, but the correspondence really
did exist by their time, and was tending constantly to be-
come more perfect. They were thus able to frame a juridical
terminology which had for one virtue that it was rigidly con-
sistent with itself, and for another that, if it did not completely
express facts, the qualifications of its accuracy were never seri-
ous enough to deprive it of value, and tended, moreover, to
become less and less important as time went on. No concep-
tion of law and society has ever removed such a mass of
undoubted delusion. The force at the disposal of Sovereigns
did in fact act largely through laws as understood by these
Jurists, but it acted confusedly, hesitatingly, with many mis-
takes and vast omissions. They for the first time saw all
that it was capable of effecting, if it was applied boldly and
consistently. All that has followed is a testimony to their
sagacity." i

Sagacious indeed must those minds have been — and
in a miraculous way — who, seeking to describe law
as it was, failed only because they accurately
described law as it was to become, and rose from
the ashes of scientific failure into a glory of prophecy
of which they had not dreamed!

Where does Prof. Maine find the evidence which

1 Maine's Early History of Institutions, pp. 396—397.

Growth and Function 201

convinces him that the doctrine that law is the
command of the sovereign, erroneous in the past
to the point of absurdity as he admits, is destined
to become truth in the future? What is there to
reconcile him to a change so momentous? It is in
the progressive change which he thinks is observable
in the history of the advance of all Aryan nations,
as they pass from small local communities into
strong centralised States. As such States advance in
population, wealth, and power he observes a corre-
sponding activity in Legislation. He saw the classi-
cal Roman law give way to the Pandects and the
Code of Justinian, and he saw the ancient laws of
France dissolved by legislative enterprise into the
Code Napoleon. He says: "The capital fact in the
mechanism of the modern States is the energy of
Legislatures/'1 He thought he saw coming down
from the past a conflict between the notion of Order
and the notion of Force in the law, and that Force
was to emerge triumphant. He says:

" The word ' law ' has come down to us in close association with
two notions, the notion of order and the notion of force. The
association is of considerable antiquity and is disclosed by a
considerable variety of languages, and the problem has repeat-
edly suggested itself, which of the two notions thus linked to-
gether is entitled to precedence over the other, and which of
them is first in point of mental conception ? The answer be-
fore the Analytical Jurists wrote would, on the whole, have
been that ' law, ' before all things, implied order. . . . The
Analytical Jurists, on the other hand, lay down unhesitatingly
that the notion of force has priority over the notion of order."

1 Maine's Early History of Institutions, p. 398. 2 Ibid., p. 371.

Law, Its Origin

And the " force'' thus spoken of is pure arbitrary
force, that described by Austin as belonging to the
sovereign who has the power of doing " exactly as
he pleases." yf

Prof. Maine does not offer to us reasons tending to
show that legislation ought to supersede unwritten
law, though this is probably his view, but yields
his acceptance of Austin's theory for the reason that
he thinks that it is now in fact superseding it, and
will do so completely in the future. It would have
been gratifying if he had pointed out the particular
facts evidencing the progress of this momentous
change, beyond the brief references to the activity
of legislation in the later Roman Empire and in the
modern States and to the Justinian and Napoleonic
Codes. I think it will be found upon a weighing of
the evidence that the notion that legislation is
occupying the field and discharging the functions
of the unwritten law is quite unfounded, and that the
great change taking place, according to Prof. Maine,
by which the notion of Force is to become supreme
over Order, is quite imaginary.

In the first place, in order to estimate the weight
of the considerations alluded to by him, it is to no
purpose to make reference to the general fact of
legislative activity in modern times. Is that activity
employed in making the substantive laws regulating
conduct — that is, in asserting jurisdiction over the
field hitherto occupied by the unwritten law? This
is the true question. I have heretofore, in marking
out the province of written law indicated that the
directions in which its activity, according to its

Growth and Function 203

essential nature, was properly displayed was, not in
overthrowing or displacing the unwritten law, not
by acting in hostility to it, but in acknowledging
the supremacy of custom and becoming its faithful
handmaid and servant, and supplementing and aiding
it by doing those things which custom could not do
for itself. Now, if we turn to see in what the activity
of legislation, which Prof. Maine calls "the capital
fact in the mechanism of modern States," is really
displayed, we find it to be in performing the function
I pointed out as the appropriate province of legis-
lation— the political organisation of the State in all
its branches, the making provision for the election
and appointment of multitudes of officials, for the
establishment and maintenance of schools, poor-
houses, prisons, and other public works, the whole
provision for criminal law, the maintenance of a
legislative and judicial system, provisions for the
creation and control of corporations, banks, insurance
companies, for supplying details necessary to secure
certainty in the operation of the unwritten law,
such as fixing days of grace, prescribing positive
precautions to determine responsibility in cases of
negligence, conforming the unwritten law to custom
where custom had outgrown precedent, and in at-
tending to the vast business involved in carrying
out these objects. Taking the statute-books of any
of the States of this country or of England, we
shall find, as I have heretofore observed, that nearly
all their contents consist of work of this character,
which is not the making of law in any juristic sense.
That part which does really deal with the govern-

204 Law, Its Origin

ment of conduct is, so far as it is valid and effective,
so small that it may well be neglected in any inquiry
concerning the main factor in our substantive law.
It has been correctly described as "a mere fringe
upon the body of the common law."

It may be thought at first sight that the examples
of the great codifications such as those of Rome,
France, Germany, and some American States, are
genuine instances of the assertion of the supremacy
of legislation over unwritten law, I reserve the
subject of codification for subsequent treatment; but
I may remark here that since all these codifications
are, with certain exceptions not important to the
present question, avowed re-enactments of existing
law, they do not evidence any assumption of its
functions but rather a confession that all that legis-
lation can do in relation to it is to acknowledge and
adopt it. What is law without legislation cannot
be made more law by enactment.

There are better ways of ascertaining whether
legislation has during the period of its modern
activity been gaining a supremacy over the law of
custom, than by a general reference to the fact of
such activity. There have been many attempts
to introduce new rules abrogating existing customs
or inconsistent with them. This initiates an imme-
diate conflict and the result of it furnishes a crucial
test by which we may determine the comparative
force of legislation and of the unwritten law of
custom. I purpose giving some attention to this
test by citing instances in which newly enacted law
has come in conflict with deep-seated custom.

Growth and Function 205

These instances have sometimes arisen from the
want of forethought in the legislator, in not fully
perceiving what the effect of an enactment would
be, and sometimes from the positive determination
to change existing law. The original Statute of Uses,
if enforced according to its terms, would have nearly
created a revolution in the long-established customs
by which men bestowed their property for the
benefit of relatives or others; but the courts over-
ruled the language of Parliament and so limited the
law that its only effect upon these customs was to
cause the introduction of two or three additional
words in a conveyance. The Statute of Limitations
would have prevented the redress of frauds after
the lapse of a certain number of years, but the courts,
obeying the deep-seated motives in the minds of
men created by custom, did not hesitate, in case of
concealed fraud, to disobey its injunction. The
British Parliament, in obedience to a notion that the
practices of dealers in provisions in market-towns,
called engrossing, forestalling, and regrating, to buy
up commodities coming to market and resell them
at retail, tended to burdensome enhancement of
prices, began as early as 1552 with an attempt to
break up such practices by legislation, and between
that time and 1706 enacted some prohibitory stat-
utes; but this came in contact with large general
customs and the freedom of contract, and utterly
failed of enforcement, and by the Act of 1772 they
were all repealed in penitential shame. The multi-
tude of laws prohibiting the sale of intoxicating
drinks, being designed to restrict their use, come in

2o6 Law, Its Origin

contact not indeed with universal custom, but with
very common and widespread practice. It has been /^
found impossible to enforce these except in small T
rural communities, and but partially there.

But a more complete illustration of the actual
limitations of the so-called sovereign power, and the
unwisdom of any exercise of it to change an estab-
lished custom, is to be found in the events which are
happening in the days now flying. Some considera-
tion of these events is very pertinent here, and justi-
fies a somewhat detailed notice. There is no custom
more universal than that of the building and main-
tenance of the ordinary public highways at the
public expense and the using of them by every
member of the community upon absolutely equal
terms. An exception has been indulged in the case
of railroads, the construction and maintenance of
which in most countries have been committed to the
hands of private persons, or corporations, operating
under franchises granted by the State. They still
remain, however, public highways, and the equal use
of them on equal terms by the public — an equality
possible only by concerted action and agreement
among the naturally competing roads — has been,
for the most part, a jealously guarded custom. But
no vigilance has been found sufficient to prevent
numerous departures from it. Powerful interests,
acting sometimes upon the cupidity and sometimes
upon the fears of the railway companies, have been
able to obtain preferential rates, and when we
consider how much the price of all commodities
depends upon the cost of transportation, it is not

Growth and Function 207

surprising that numerous vast private fortunes
should have been secured by these discriminating
practices. At first, they were scarcely considered
objectionable, and were, indeed, almost regarded as
proofs of the superior enterprise and merit of those
who secured the benefit of them. But the unerring
wisdom of universal custom was never more manifest
than here. The advantages thus gained by a favoured
few enabled them to crush their rivals in the great
fields of industry, and the shocking injustice became
more and more manifest. To repress and abolish
these mischievous departures from custom was a
clear occasion for the employment of legislation, and
it was used by the enactment of the Interstate
Commerce law, which enjoined the preservation of
equality in rates and made the practice of discrimi-
nation criminal. But it was not found easy to en-
force the law. The prohibition was easily evaded
by resorting to rebates and other devices, and the
mischief continued. It was a condition of things
by no means satisfactory to the great and powerful
railroad companies. Discrimination was the un-
willing resort of weak companies whose necessities
demanded the occasional purchase of traffic at rates
unreasonably low, or whose fears of the withdrawal
of traffic by powerful interests compelled them to
yield to unreasonable demands. But if one line of
transportation ventured to cut a rate it was a neces-
sity for all the rivals to follow. The force of this
necessity is not fully comprehended by all; but the
truth is that the cutting of a rate by a railroad
company, however secretly done and incapable of

2o8 Law, Its Origin

detection and punishment at the hands of a prose-
cuting officer, becomes immediately known to other
companies and their patrons, for the traffic will at
once flow to the road of the rate-cutting company.
The situation, then, is this for the manager of a
railroad company: Unless he conforms to the cut
his company loses the traffic, and with the loss of
traffic would come the failure, first, to pay dividends,
then to pay interest on fixed charges, then insolvency
and a receiver. Were the road his own private
property his plight would be comparatively endur-
able, for he would have to render no account of his
failure; but what answer would be expected from
a numerous body of stockholders on reporting to
them that one of his rivals had disobeyed the law
and the common agreement by cutting rates, and
that, as he could not conscientiously follow the
example, misfortune was the necessary result? It
would be likely to be that, if he entertained such
sentimental views of the transportation business, he
ought to have informed the stockholders before he
accepted his office and took their property and
interests in charge. The mischiefs arising out of the
practice of discrimination had become so unendurable
that the competing roads combined in different parts
of the country, to put an end to it. The method
employed (I speak of the efforts made by the great
lines east of Chicago) was by an agreement containing
very drastic provisions for detecting and exposing any
discriminating practice, and really making it more
dangerous for the companies to depart from the
agreement than to keep it. It contained stipulations

Growth and Function 209

that the rates should be reasonable but left it
eventually optional to each company whether to
conform to the agreed rates or not, exacting com-
pliance, however, for a few days, so that, in cases
of an intended rejection of the rates, notice might
be given to the other companies of a probable com-
petition. On its face this agreement was wise and
beneficial, and I know of no good reason for dis-
trusting the actual intention of its authors, but it
was destined to challenge hostility. It so happened
that, several years before, Congress had enacted a
law designed, on its face, to repress contracts,
conspiracies, and combinations in restraint of trade.
The spectacle of great combinations of powerful
interests, commonly called "trusts" had excited
public interest and suspicion and a clamour that
Congress should take measures to prevent them or
deprive them of their supposed powers for mischief.
As usual, each of the rival political parties sought
to turn this clamour to its own advantage and
claimed to be the best guardian of the public interests
against the encroachments of combined wealth.
The party in power, in order to make good its pre-
tences, carried the above-mentioned statute through
Congress. Legislation framed to secure partisan
advantage is dangerously apt to be fraught with
mischief; but in this instance it was shaped by
prudent and cautious hands. It declared all con-
tracts, combinations, and conspiracies in restraint
of interstate trade or commerce to be illegal, and
subjected them to penalties of fine and imprison-
ment, and authorised in a vague way a resort for
14

210 Law, Its Origin

prevention to the remedy of injunction. Thus
framed, the act could have no operation except
against practices properly embraced under the class
of ''contracts, combinations, and conspiracies — in
restraint of interstate trade," and by the long and
well-established law, these restraints had been
confined to such as were injurious to trade; and
whether any particular contract or combination was
really injurious was, in its nature, a question of
economic fact, although some practices had been
held necessarily injurious to trade, and therefore,
as a matter of law, to fall within the condemnation.
The undiscriminating suspicion of the public was
extended to all powerful combinations, and em-
braced the agreement above mentioned between the
railroad companies, and the government, whose
policy was represented by the anti-trust legislation,
could not maintain its attitude of assumed hostility
to "Trusts" without attacking the agreement. A
bill was accordingly filed by the Attorney-General
for an injunction against the execution of the agree-
ment, which, having been dismissed by a Circuit
Court was carried by appeal to the Supreme Court.
Much subsequent confusion and difficulty might
have been avoided had the court deliberately and
with no preconceived hostility scrutinised that agree-
ment with the view of determining its real purpose,
and whether its probable effect would be, in fact,
injurious to commerce. But no court, however
exalted, is uninfluenced by strong popular sentiment,
and this high tribunal failed to keep in mind the
imperious necessity of uniformity in the rates of

Growth and Function 2 1 1

railroad transportation over parallel lines, and con-
sequently failed to perceive the merit of the agree-
ment. It was animated by an underlying suspicion
that the effort nominally to secure uniform rates
was really designed to secure high rates, and it seized
upon the provision which involved a slight, tem-
porary, and innocuous restraint upon competition as
vitiating the whole agreement, thus declaring that
any agreement containing any restraint whatever
upon competition, whatever the purpose might be,
was per se injurious to trade. It is safe to say that
this doctrine was without precedent. I should as a
lawyer, especially as I happened to be of counsel for
the defeated parties, have hesitated to indulge in any
criticism of this decision pertinent to the questions
I am discussing had not members of the court itself
exercised that privilege in the fullest manner and
made it manifest, I think it safe to say, that the
decision will not be followed by the tribunal which
declared it. Inasmuch as the decision of the court
was founded upon an interpretation of the statute,
it must be taken that Congress enacted a law re-
specting railway companies which made any con-
tract, combination, or conspiracy containing any
ingredient, however small, in restraint of competition
illegal and a crime in those engaged in it ; and con-
sequently that an agreement between railroad com-
panies simply designed to secure uniformity in
reasonable rates, though not compulsory upon the
parties save for a few days, was a crime ! Now, as
all the managers of all the great railways of the
•country were parties to the condemned agreement,

212 Law, Its Origin

or to others like it, express or implied, it was brought
to light that some hundreds of citizens of eminence
had been violating the law and were liable to fine
and imprisonment; yet no criminal prosecutions
were set on foot, and the Attorney-General seemed
to have exercised the supreme prerogative of pardon
which the Constitution reserves to the chief magis-
trate. But what effect has the decision had upon
the conduct of the presidents, directors, and man-
agers of the railroad companies? None whatever.
They have indeed abrogated their formal written
agreements, but they still confer and fix uniform
rates by concert — that is, they are in the daily prac-
tice of forming the combinations and conspiracies
which the law condemns! And no attempt is made
to bring any one of the criminals to justice! The
artillery of the Attorney-General's office is as silent
as if every gun were spiked. It was easy for the
Government to pretend to execute the law, but
when it found out what executing the law really
involved it recoiled. And both the railroad officers
who made, and make, themselves criminal, and the
Government that fails to punish them, are right.
Both yield to a necessity which is absolutely im-
perious. What creates the wrong is the statute;
that is, with the interpretation the Supreme Court
has placed upon it.

This illustration gives a clear notion of the anoma-
lous conditions thrust upon society when the written
law commands one thing and the universal custom
another. The Government, by the Anti-Trust Act,
as interpreted by the court, has declared the slightest

Growth and Function 213

degree of restraint of competition in traffic arrange-
ments concerted between parallel railroad lines to be
illegal and criminal. This is to make competition
and difference in rates the supreme policy, whereas
universal custom requires the suppression of com-
petition in rates and the preservation of uniformity !

The result of this conflict is not open to doubt.
The Written Law is victorious upon paper and power-
less elsewhere. The Attorney-General is sensible of
the feebleness of the command resting upon him
to enforce a law the enforcement of which would
send a hundred of the most eminent citizens to jail
and throw the industry of the country into con-
fusion. Meanwhile, the interests of peace and order
are left to the protection of the nominal criminals !
The command of the Sovereign will prove impotent
against the unyielding force of custom. Uniformity
of rates in railway transportation, upon which the
safety of industrial enterprises so entirely depends,
will be preserved. It will be preserved to a certain
extent by informal consultation and concert between
competing lines, but this being without the aid of
Government enforcement will be subject to frequent
and vexatious violations. The most effective method
will be the acquisition by one interest of the control
of the management of all competing lines by the
acquisition of ownership, or of the control of owner-
ship. One gigantic scheme in this direction has
been baffled by what is called the Northern Securities
decision, made in an action instituted by the Govern-
ment to enforce the provisions of the same Anti-
Trust Act. But other efforts will be made, and

214 Law, Its Origin

should they not prove effective, real ownership will be
acquired by one or a few individuals; and the goal
least expected by those who have insisted upon com-
petitive and discriminating war will be reached. The
practical difficulties of another resort, that is, govern-
ment ownership, or fixing of uniform rates by gov-
ernment, will be made clear when all others shall
have proved ineffectual. The deep-seated and far-
reaching custom of society demanding uniform rates
for the enjoyment of the benefits of all government
franchises, will render abortive all legislative at-
tempts which stand in its way.

A still more impressive illustration of the impo-
tence of written law when brought into conflict
with custom is to be found in our present national
history. During the existence of slavery in the
United States, the negroes in the slave States were
regarded and treated as personal property absolutely
destitute of every civil right, and the notion that they
could participate in government through the privi-
lege of voting was something not to be dreamed of.
This condition was a deep-seated and universal cus-
tom. The abolition of slavery, as a consequence of
the civil war, converted the whole race at a stroke
from slaves to freemen — at least in theory. But
they were freemen in little more than name. They
were not indeed any longer bought and sold or
claimed as property by their former masters., but the
equality which belongs to freemen was everywhere
denied them, and various devices were resorted
to, such as compulsory apprenticeship, by which
the race might be again reduced on a large scale

Growth and Function 215

to a condition of practical slavery. The General
Government then proceeded upon the notion that
if the privilege of the ballot were extended to
the freedmen there would be a competition, as else-
where under free suffrage, for their votes, and
legislators wotild be chosen who would enact laws to
enforce their rights. But the expected competition
did not arise, and the legislative bodies of the several
Southern States, still composed of white men only,
proceeded to enact laws embodying various devices
which would, and did, practically nullify the gift of
the ballot. This provoked a more energetic deter-
mination by the General Government to enforce the
right of the freedmen to the ballot and to a general
equality with the whites before the law. A formi-
dable mass of legislation was enacted in pursuance of
this determination, crowned by an amendment of the
Constitution itself, prohibiting all political discrimina-
tion of every form between citizens, based upon the
distinctions of colour or race. The legislative de-
vices by which the white men had been enabled to
baffle the gift of political equality to the freedmen
being thus rendered ineffective, they took the only
course remaining to them and resorted to such forms
of force and fraud as seemed best calculated to defeat
the Constitutional and Congressional enactments.
In some places terror was produced among the ne-
groes by a general and noisy display of firearms pre-
vious to and at the time of the elections, by which the
negroes were intimidated and abstained from voting
through fear ; in others, where they ventured to vote,
the ballot was fraudulently tampered with so as to

2i6 Law, Its Origin

render their votes ineffective. To such an extent
had this almost unconcealed practice of force and
fraud by whole communities proceeded as to alarm the
more moral elements of the communities guilty of it,
and excite the fear that all distinctions between right
and wrong would become obliterated and society
itself fall into anarchy. Not even this suggested a
withdrawal of their opposition to the Federal legisla-
tion, but only more ingenious contrivances by which
they might avoid the grosser practices of fraud and
violence and borrow the appearance of legality in
their effort to deprive the black race of political equal-
ity. To this end constitutional provisions de-
fining and qualifying the right of suffrage have been
contrived and adopted in some States, and are likely
to be further extended, whereby, without open dis-
crimination, the practical exclusion of the inferior
race from political power is secured. The validity of
these constitutional provisions has been challenged
at the bar of the Supreme Court, and it is not easy to
see how they can escape judicial condemnation, but
thus far that tribunal has avoided the questions thus
thrust upon it, and there is an apparent disposi-
tion among the judges to escape them altogether.
Should this disposition prevail, the whole of the
mighty Federal legislation contrived to give political
equality to the blacks will be practically annulled,
leaving behind, however, the great constitutions of
States, which should be models of openness, directness,
and dignity, deeply marked by the evidences of con-
cealment and deceit. I do not discuss the question
whether political equality ought to be bestowed upon

Growth and Function 217

a race to which social equality cannot be extended.
Even tyranny may be beneficent in its aims, but
never in its results, and the attempt to compel a com-
munity of men to do right by legislative command,
when they do not think it to be right, is tyranny. It
is Force in conflict with Order. Force will not gain
its end, but will superinduce a mass of evil and suffer-
ing which was the last thing it desired or expected.

Many other instances might be given showing the
impotence of legislation when put in conflict with
custom, and refuting the notion that Law is now
tending, or ever will tend, to become the creature of
Force rather than of Order. Conduct will forever
follow the great governing influences proceeding from
the constitution of man and the environment in
which he is placed. It will change as these influences
change, and not otherwise.

In nothing is human vanity more largely displayed
than in the love of a theory. The simple and beauti-
ful forms in which consequences develop themselves
when a sufficient cause is assumed, as in the problems
of mathematics, furnish a pleasure which the mind
desires to hold in its grasp, and it recoils from any
scrutiny into facts from a secret fear that the posses-
sion will be endangered and turns back to revel in the
delights of the theory. Bentham could not contem-

plate without indignation the fact that the world was r i
governed by something different from enacted law.
To talk about conduct following its own laws, and
obeying custom, would have put him in a passion.
To remind him that every human society, from the
beginning, had followed custom, would have probably

218 Law, Its Origin

drawn the answer that he was well aware of the
stupidity of mankind, that that was the very thing
which angered him, that were it not for that his sys-
tem would have been adopted long before! Austin
was somewhat less dogmatic but almost equally fond
of his theory. The conception of a sovereign power
in the State which could "do exactly as it pleases"
would be in his view effective in reaching, by means
of legislation, a consistent and simple system of law.
He did not, like his master, Bentham, reject "judge-
made law" with abhorrence, but saw in it an ap-
proach to what law ought to be ; and as he found it
enforced by the sovereign power of the State, he
fell into the error of thinking that this sovereign
power had really created what it thus enforced. Not
stopping to inquire whether the so-called sovereign
power was in fact sovereign, he chose to assume it ;
and his maxim that "what the sovereign permits he
commands" furnished a ready demonstration that
all law actually enforced by the State was the com-
mand of the sovereign. Prof. Maine was, apparently,
a thorough believer in Austin's theories when he be-
g£in his inquiries. He soon learned that when the
actual facts of the origin of law are studied the notion
that they are in any sense the creation of the sover-
eign must be relinquished. Nowhere in the actual
world could a sovereign power be found engaged in the
creation of law except in the Roman Empire and in
the great modern States, and even in those States the
sovereign was only beginning to be the author of law.
He caught, however, at the appearance of this ten-
dency and predicted its increase until it should be-

Growth and Function 219

come perfect, and then, in his prophetic view, the
Austinian theory would stand justified and estab-
lished. Neither Bentham nor Austin sufficiently
held in mind that the province of science was rigidly
confined to the observation and orderly arrangement
of facts, or that it was anything more than a process
of reasoning from assumed premises; but this was no
particular failing in them. It was the common fault
of the time in which they wrote. How great the real
ignorance of true science then was, even with the
most highly educated, may be imagined from an ex-
pression of Macaulay, who, eulogising Bentham, says
that he found "Jurisprudence a gibberish and left it
a science ' ' ! Prof. Maine lived in the full blaze of the
scientific achievements which have lighted the way
for all seekers after the truth. He knew the rigid
pathway by following which those successes had been
won, and makes the apology for Austin which I have
mentioned, saying that he "more than once reminds
us that, though his principal writings are not more
than forty years old [at that time], he wrote before
men's ideas were leavened to the present depth by the
sciences of experiment and observation."1 But
Prof. Maine is guilty of the neglect which he seeks to
excuse. He has indeed explored the early institu-
tions of society to learn the forms of conduct which
they exhibit and the rules which actually govern the
action of men, but this is a part only of the territory
of fact which the inquirer must explore before he can
reach a true notion of the origin of law. It is only the
external field of observation. There is an internal

1 Maine's Early History of Institutions, p. 373.

220 Law: Origin, Growth, and Function

field quite as important, into which Prof. Maine
never sought to enter any more than Bentham or
Austin. He never scrutinised the realm of con-
sciousness to learn how conduct really originates,
a,nd what is its cause or why it is that the actions of
men so persistently present themselves in the form of
custom, and why departures from custom are so
universally condemned and punished. No adequate
conception of law can be reached until this task has
been faithfully prosecuted.

LECTURE IX

I NOW turn to another of the consequences of that
view of the nature and function of law which I
have adopted, namely, the limitations it places upon
the province of Legislation. In reaching that view it
became necessary for me to treat briefly of the nature
of enacted law as distinguished from that which is
the growth of custom and to consider at some length
the principal uses for which it had been employed
from the earliest times, and I have been obliged to
say much more upon the same topic in criticising the
theory that all law is the command of the sovereign
power; but the importance of the subject demands
that I should present in a connected view the real
nature of legislation, the uses for which it may be
employed, and the mischiefs likely to flow from ill-
advised resorts to it — in other words, that I should
mark out the Province of Legislation.

The popular estimate of the possibilities for good
which may be realised through the enactment of law
is, in my opinion, greatly exaggerated. Nothing
is more attractive to the benevolent vanity of men
than the notion that they can effect great improve-
ments in society by the simple process of forbidding
all wrong conduct, or conduct which they think is
wrong, by law, and of enjoining all good conduct by

221

222 Law, Its Origin

the same means ; as if men could not find out how to
live until a book were placed in the hands of every
individual, in which the things to be done and those
not to be done were clearly set down. The man
who. by his writings, has done most to cultivate and
propagate this notion in recent times is Jeremy Ben-
tham, of whom I have had frequent occasion to speak.
Although educated for the bar. he never engaged in
the practice of his profession. He was a student,
and Ethics, particularly what might be called the
Ethics of Government, was the main subject which
engrossed his attention. Inasmuch as Governments
exist for the sole purpose of securing happiness to the
governed, he thought it their duty to deliberately
set about the accomplishment of that purpose and
to ascertain what conduct would promote and what
obstruct happiness, and to make laws in writing en-
joining the former and prohibiting the latter, and
insuring a fair distribution of the total amount of the
happiness thus achieved among the governed in pro-
portion to their obedience to the law. It provoked
the rather coarse, but expressive, sarcasm of Carlyle,
who, as you know, did not revel in pictures of human
happiness, or greatly love the common herd, that it
was a scheme ''for the distribution of an attainable
amount of Pig-wash among a given multitude of Pigs."
I do not adopt this characterisation of the work of
a great and philanthropic man.

This theory seems on its face very simple. Its
complexities and difficulties appear only when we
come to look at the means by which it is to be carried
into effect. These means Bentham carefully elabo-

Growth and Function 223

rated by making a detailed analysis of the nature of
man, and a careful enumeration and classification of
all the pleasures and pains he was capable^of experi-
encing, of all his various passions and tendencies, and
of the multitude of varying conditions of time and
place affecting his conduct. From investigations
like these he gathered the principles which should
guide the action of the legislator in the enactment of
Codes of law, both penal and civil. The statement
and explanation of these principles, with which, it is
to be borne in mind, the legislator is to make himself
familiar, occupies a space which would amount to
thousands of ordinary octavo pages, and is a pro-
found and instructive compendium, presented in ac-
curate and precise, though not attractive, language.
With Codes framed upon the basis of these principles
he would supersede all existing law and have them
contain the only rules of conduct which judges should
be permitted to enforce. Here, it will be perceived,
is an a priori scheme for the creation of human happi-
ness through the instrumentality of Government.
Man is not to work out his own happiness by
learning from the teachings of experience what
is right and what is wrong and acting accord-
ingly, but by studying a book ; and Bentham makes
provision for beginning the instruction of children
by learning the book by heart, and repeating it as
they would the melodies of Mother Goose. He
says:

" In this manner before sixteen years of age, without hin-
drance to any other studies, the pupils in public schools would
become more conversant with the laws of their country, than

224 Law, Its Origin

those lawyers at present are, whose hair has grown grey in the
contentions of the bar." 1

This scheme assumes that the legislator can know
beforehand from the nature of man all the conduct
he can by possibility exhibit, determine, and enjoin
what is conducive to the greatest happiness of the
greatest number, and forbid what is destructive of
that happiness.

The world- wide difference between this theory of
law and that which I have ventured to think the
true one, is palpable at a glance. They are, indeed,
opposites. The one views man as coming into
existence with faculties which enable him to perceive
the consequences of his own conduct, and to regulate
it accordingly; so that when he finds that action of a
certain character arouses the resentment, anger, and
retaliation of others, he avoids it, learns that com-
pliance with custom is expected both by himself and
others, and that consequently when he complies with
it he is safe, and thus makes compliance with custom
his rule of action; that in this way a boundary line is
marked out within which every man may act freely,
but beyond which he must not go; that with this
freedom of action he is left to work out his own
happiness or misery by his own efforts; that society
enforces this conformity to custom by punishing
departures from it, and to this end constructs the
machinery of government and enacts the laws which
are adapted to the purpose, the whole scheme being
the result of an Order altogether analagous to the

1 Bentham, Works, vol. i., p. 158.

Growth and Function 225

order which governs the movements of the physical
world. The other is a scheme by which society is
made to engage in the business of finding out what
conduct on the part of its members will secure the
greatest amount of happiness to all, and then com-
pelling its adoption by Force. The one is founded
on the belief that no part of the universe is outside
of the domain of existing Law; that when the human
race was brought into the world, as it was composed
of beings who were to act, their actions would fol-
low an already existing law, and not prasent a scene
of anarchy. The other assumes that the race was,
so to speak, dumped upon the earth without
rule or compass, unable to properly govern itself
until some philosophic moralist arose to turn his
thoughts inward and discover that the chief end of
man was happiness, and that the way to live was to
form a government which should appoint a commis-
sion to frame a body of rules for attaining happiness,
which rules the government would by force compel
all men to obey. The one view of the function of
government may be symbolised as that of a police-
man who stands by and does nothing as long as no
one in the crowd breaks the peace, acting on the
assumption that right consists in minding one's own
business, and wrong in trespassing upon others, and
that every one knows perfectly well, without being
told, what is right and what is wrong; the other
as that of a schoolmaster with the whole of society
for his pupils, all ignorant how to act until they had
learned what the end of action was and the way to
attain it. Bentham had a talent for apt illustration,
15

226 Law, Its Origin

which he frequently employed to satirise the things
he disliked, and he once said, speaking of the un-
written law, that law was taught as a master teaches
his dog, by waiting until he did something wrong and
then beating him! He could not have described it
more accurately. That is the way of nature through-
out the universe. Why should not the master wait
until the dog had done something wrong? Certainly
he should not have punished him before. But per-
haps Bentham intended that the master beat his dog
for doing something the animal had no reason to think
wrong. But this is not true, at least of good masters,
such alone as Bentham can be supposed to have had
in mind. If he had been asked how he knew that
the dog was ignorant of wrongdoing, I cannot imagine
what he would have said. Certainly he would not
have intimated that a code of dog conduct ought
to have been prepared in some language known to
dogs and distributed among them. The way in
which the dog had learned that the conduct for which
he was punished was wrong was that when he was a
puppy he was petted, caressed, fed, and otherwise
made happy when he obeyed his master, and when
he disobeyed him, at first gently scolded, then more
sternly, afterwards slightly punished, and finally
more severely, until he had learned to associate
happiness with obedience and misery with disobedi-
ence, and thus well knew that he had deserved the
blows he received. The same is the case with the
human being, child and man. The child is taught as
the puppy was. Where the parental relation does
not exist the discipline may be less gentle and affec-

Growth and Function 227

tionate, but it is the same in method. In the infancy
of society, when one man encroached upon another
he met sometimes with reproof, sometimes with
retaliatory resentment, sometimes with violent pun-
ishment. It thus came about that certain things
became associated with the prospect of suffering and
others with that of reward, or, at least, of acquies-
cence; and as this instruction is one which goes on
with every man every moment of his life, it is per-
fectly learned. This is the sort of knowledge that
every man has of the law resting upon custom.
There may be cases where the legally right and the
legally wrong may not be known, but how few they
are ! Every convicted criminal knows that it is idle
to pretend that he did not know he was doing wrong,
for no one would believe him. Of this mode of
knowing the law Bentham apparently had no know-
ledge. He really seemed to think that the enactment
and publication of the law was not only the best
but the only way of bringing a knowledge of it to the
bulk of the members of society.

Of course that knowledge which all have of what
things are right and what wrong in the unwritten
law does not often include a knowledge of the precise
penal consequences which may follow the commission
of a wrong, nor is it of any importance that it should.
It is enough for a man to know that a thing is right
and that he ought to do it, or that it is wrong and that
he ought to abstain from it. The notion that the
whole criminal class are entitled to have brought
home to them the particular amount of the penalty
which the law attaches to particular offenses,

228 Law, Its Origin

in order to enable them to weigh more exactly the
chances they are contemplating, is wholly irrational.
The absurdity — I can call it no less — of Bentham's
view is that the true method of making law known
is to first enact it in writing and then print and publish
it. There is no objection to this, but its efficiency
is based upon the assumption that the bulk of man-
kind do and will read the laws that are so published,
whereas, in fact, it is safe to say that scarcely one
man in a thousand does this.

But the consequences of misguided legislation
should not blind us to its beneficent uses. It should
make us only the more solicitous to learn what its
true nature is, what its uses are, and the dangers
against which caution should be exercised in the
employment of that instrumentality ; that is to say,
to know the Province of Legislation and the limita-
tions of its exercise. In what I have had to say
heretofore concerning written law, it has been mainly
in pursuance of my general purpose to explore the
whole field of human conduct with the view of
discovering all the causes which in fact restrain and
regulate it; and so far three things have appeared to
be true as matters of fact concerning legislation:

(1) that it is an instrumentality first employed at a
somewhat advanced state of social progress and
after society has come to assume an organised form;

(2) that the purposes for which it was at first and
still is employed were political rather than juristic,
to remove political evils, perfect the organisation of
the state and thus to aid the unwritten law of custom
and make it more effective, rather than to attempt

Growth and Function 229

to furnish a substitute for it; that its action, there-
fore, was confined to the province of Public

(3) that the only considerable exception to this was
the instance of codification, an exception more ap-
parent than real, the cases in which it was resorted to
being mainly where several states or provinces having
different customs had become united under one
government, and the different customs were con-
fused and needed unification.

Since legislation has for the period of three thou-
sand years been confined to the province of public
law, as above indicated, I might be warranted in
drawing the conclusion that this was the only purpose
to which it was adapted; but I shall be abundantly
justified in this if, after considering its essential
nature, it shall appear to be quite unfitted, and,
indeed, incapable of taking a principal part in the
regulation of the conduct of men in their private re-
lations with each other.

I have remarked that Austin's definition of Law
was a tolerable description of Legislation; but I
think it would be a better definition to say that it
is simply the formal written expression of the will of
the Sovereign State. When society has become a
conscious organism it has a will, and the act of ex-
pressing this, whether by the decree of an absolute
monarch or by the voice of a legislative body, is
what is commonly called legislation. All such ex-
pressions are called laws, but all of them are not
really such in the sense in which I have regarded
law. As I have already pointed out, the State is a
great corporation having many things to do. such as

230 Law, Its Origin

the building of roads, and constructing a great variety
of public works, appointing officers and marking
out their duties. It can express its will in these par-
ticulars only by declaring it in writing, but such
declarations are not in the strict sense laws, because
they are not designed to regulate directly the con-
duct of men in their dealings with each other. Such
acts are really nothing but expressions of the cor-
porate will of the State in the transaction of its par-
ticular business.

Legislation does, however, in a large number of in-
stances express the will of the State in relation to
conduct, and its acts of this nature are without
impropriety styled laws. For instance it confers
upon individuals the power of acting under cor-
porate forms and prescribes numerous rules to which
such action must conform, thus laying the foundation
for the law of corporations. It imposes upon the
people generally many duties such as the payment
of taxes, the rendering of military service, etc., and
its acts of this nature affect conduct, but incidentally
only, their chief object being to create efficient in-
strumentalities for enforcing and aiding the funda-
mental law of custom.

Between legislation, even when thus embracing the
commands of the State aimed at conduct, and the
unwritten law, the difference is, we might say, world-
wide. The former is made by a single human person,
or by a very few persons, and necessarily exhibits the
imperfection and error which attaches to all such
works. It is created by a breath of the human will
and may be abrogated by another breath. The latter

Growth and Function 231

is self -existent, eternal, absolutely right and just for
the purposes of social government, irrepealable and un-
changeable. It may be justly called Divine ; for, being
identical with custom which is the form in which
human nature necessarily develops conduct, it can
have no other author than that of human nature
itself.

These fundamental distinctions between the un-
written law of custom and the commands of the
sovereign have been recognised in the thought of
the world ever since legislation began. Universal
custom in Athens made it the duty of relatives to
bury the bodies of the dead ; and when the tyrant
Creon made a decree forbidding, under penalty of
death, the burial of Polynices, and ordaining that he
should be left a corpse for birds and dogs to eat, a
ghastly sight of shame, his sister Antigone dared to
disobey the decree ; and when asked by the tyrant,
1 ' And thou didst indeed dare to transgress that law ? ' '
answered: "Yes, for it was not Zeus that had pub-
lished that edict; not such are the laws set among men
by the justice which dwells with the gods below; nor
deemed I that thy decrees were of such force that a
mortal could override the unwritten and unfailing
statutes of Heaven. For their life is not of to-day or
yesterday, but from all time, and no man knows
when they were first put forth." And the voice
of human feeling as expressed in dramatic poetry
was the voice also of the philosophic jurists of an-
tiquity. Cicero in his dialogue De Legibus makes the
interlocutor thus define the fundamental unwritten
law:

232 Law, Its Origin

MARCUS: Therefore law is the discrimination of things just
from things unjust ; proceeding in obedience to that original
and fundamental nature of all things in accordance with which
the laws of men are framed which inflict punishment upon
the wicked, and defend and keep guard over the righteous.

QUINTUS: I understand it very clearly, and I not only
think that no other enactment should be regarded as law, but
should not even be so called.

MARCUS: Would you not, then, call the Titian and Ap-
puleian enactments laws?

QUINTUS: No, not even the Livian.

MARCUS : And you are right ; especially for the reason that
they may be annulled by a mere line of the Senate, while
that law the force of which I have explained can neither be
enacted nor repealed.1

Again, the law proceeding from legislation consists
of a multitude of distinct propositions or commands
having no necessary connection with each other, and
all of them absolute and arbitrary. No reason is
assigned for them. Stat pro ratione voluntas. A cer-
tain fact, or grouping of facts, is taken and erected
into an ideal class, and it is declared that whenever
such fact, or grouping of facts, occurs in conduct
certain legal consequences will inevitably follow,
whether just or unjust. Now such fact or grouping
may, for aught the legislator knows, or can know, be
accompanied by some other fact which will modify
the character of the grouping and convert what
otherwise would be just into injustice. Nevertheless,
the law must have its course unaffected by such un-
foreseen circumstance, although the result will be to
defeat the intention of the lawmaker and create

1 Cicero, De Legibus, lib. ii., ch. v, vi.

Growth and Function 233

injustice where he designed to prevent it. The un-
fitness of such law to govern the unknown conduct of
the unknown future is manifest.

In the unwritten law of Custom such anomalies
cannot occur, for in that law there are no absolute
and arbitrary rules. There is, indeed, one absolute
rule, but it is not arbitrary. It is that custom must be
obeyed. This is not the expression of will, but the
dictate of order. Whether any particular conduct
does or does not conform to custom can be told only
when it comes for the first time to be displayed, and,
in cases of dispute, only by the judges who are
the experts appointed by society for that purpose.
The vast body of so-called rules of law found in our
digests and treatises and mentioned in the reports of
decided cases are but the results, and logical deduc-
tions from the results, of the cases thus decided,
arranged and classified with regard to scientific order.
None of them are absolute. They are all provisional
and subject to modification.

Having pointed out the true measure of legislation
and its wide difference from the unwritten law, I
proceed to enumerate the principal uses which it is
capable of serving and which are embraced within
what may be called its province.

First: The State may, by an expression of its will,
simply do something, in which case all that it has
directly in view is accomplished by such expression :
for instance, it may grant the public franchise of
building and operating a railroad. This neither
adds to nor changes existing law, and is not, there-
fore, in a narrow and precise sense, legislation,

234 Law, Its Origin

although after the road is constructed a variety of
rights and duties relating to it will arise under exist-
ing law. But a simple grant by the State of some-
thing which it has the right to grant differs in no
respect from the grant by a private person of some-
thing he has a right to grant.

Second: The State may command something to be
done by others; for instance, it may command one
of its officers to cause a prison, a courthouse, or other
public building to be constructed. This does not
make law in the proper sense of law. It affects the
conduct of the person it commands, but in no other
sense than that in which the conduct of a soldier is
affected by the command of his superior officer. It
is a particular, not a general command. This
species of legislation is often employed in conjunction
with that first above described, as when an act is
passed creating a Banking Department. Certain
offices are created, which is a thing done; besides this,
the persons appointed to fill them are commanded to
perform the various duties assigned to them in
exercising a supervision over banking institutions,
and the bank officers are required to make regular
reports to the department, containing particular items
of information concerning the operation and condition
of the corporations under their management. Legis-
lative commands thus made, requiring special things
to be done, are part of the machinery of government,
but a part very different from that relating to the rules
which govern the ordinary conduct of men in re-
lation to each other. It is properly described as
public law, by way of distinction from private law.

Growth and Function 235

Third: Another form in which the State may ex-
press its will is that of commands which do affect the
conduct of all the members of society, as where a
law is enacted defining and punishing a crime, a
species of legislation also belonging to Public Law;
and the State may enter the province of strictly
private law and affect the conduct of its members
in their ordinary relations with each other, as where
it enacts a law for the registry of deeds and declares
that a registered conveyance shall take precedence
over one prior in date but not registered; or it might
go further and define a contract, and declare what
contracts should be valid and what invalid.

These forms in which the will of the State may be
expressed indicate the purposes towards which its
conscious action may be directed, and lead to the
inquiry whether there are any, and what, useful
rules of wisdom and prudence for guiding its action.
Manifestly there are such; but before endeavouring
to state them we should have a clear understanding
of the quality of the power, for rules very largely
depend upon that. If legislators, whether one alone
or many in a body, possessed perfect intelligence and
wisdom, the purest morality, the most sincere desire
for the public good, and were without selfish interests
and ambitions, there would be little need for laying
down rules to guide their action. The most un-
limited scope might safely be given to their authority.
A moment's reflection informs us that this is not and
cannot be the fact, although some reformers who are
animated by the passion of making men good and
happy by law are apt to think so. They fall into the

236 Law, Its Origin

error of thinking that legislators must be animated
by the same elevated purposes of which they are
conscious. Bentham could never have believed in
his theory of the universal government of men by
legislation, based upon the principle of securing the
greatest happiness to the greatest number, unless he
had in his mind the notion that such was the char-
acter of the legislative power. Had any body of re-
formers set themselves about the task of elaborating
a detailed scheme of legislation upon his theory, the
chances are that he would have been foremost in
denouncing it, thus confessing that his theories of
legislation were unfounded, unless he, or some one
equally enlightened and just, were made the legis-
lator. When we look at the sovereigns of history
the contrasts we find to the conceptions of the just
legislator are so broad as to be amusing. We may
find a Nero or an Antonine, a Peter the Great or a
Merovingian sluggard, a Louis the Fourth or a Louis
the Fourteenth, King Stork or King Log. And if
we turn to popular forms of government the spec-
tacle of the fact when compared with the theory is
often only less amusing. The members of the
Legislatures of our own States are likely to be not the
wisest, but the smartest only. Instead of having the
public good at heart they often have only their own
personal interests or ambitions, or they have been
elected through the patronage and money of some
powerful pecuniary interest and are faithful alone
to that influence. Moreover, the pecuniary value
which may lie in some special legislation is often so
great that powerful private interests are found willing

Growth and Function 237

to pay prodigious sums to secure it, and corruption
and bribery are practised to a frightful extent; the
forces of corruption become organised by some
skilful leader, expressively called a boss, who acquires
a control of legislation greater than that enjoyed by
many sovereigns. It may be asked with a sigh of
despair what use there is in laying down rules to
guide the actions of such legislators. The answer is
that the dark picture is not always the true one, and
is perhaps rather the exception than the rule. The
worst of men are not always bad; indeed, they prefer
right conduct and will follow it where temptation is
not too powerfully misleading. Many — sometimes a
majority — are right-minded, and many measures of
public importance contain in them no element fur-
nishing temptation to desert duty. Besides this,
the movement for important public measures usually
springs up among public-spirited men outside of
legislative halls, and is communicated and pro-
pagated by means of the press, and legislators are
powerfully affected by the loud public voice. It is
highly important that these disinterested influences
should be instructed in the rules which ought to
be the guide in legislation. I may endeavour to
enumerate the more important of these rules.

All the things indicated by the first two of the
forms in which I have said the will of the State
may be expressed are obviously within the province
of legislation. Where a thing can be done only by
the State in its corporate capacity it must be done
under an act expressing the corporate will that it
should be done, as the making of a grant of land

238 Law, Its Origin

owned by the State, or the granting of a public
franchise, or the construction of public works. And
the whole political organisation of the State is essen-
tially of this character; for, although in the early
stages of social organisation some progress is made
by mere custom, yet eventually the entire subject
properly falls under legislative control, and where
States are newly organised, as most of the American
States, the whole work is accomplished by legislation
from the beginning. This field of legislation is of
vast extent, embracing the organisation of the
General and State Governments with their executive,
legislative, and judicial departments, the system of
taxation, prisons, schools, courts, the dividing of the
territory into counties, towns, etc., and the delegation
to such divisions of the powers of local government,
and a multitude of other subjects of like character,
the whole composing the public machinery and
equipment of the State. There is one quite distinct
and very noticeable branch of law, one which is in-
volved in the daily work of a lawyer more than any
other, which belongs to this category; this is the law
of judicial procedure, which embraces the various
sorts of actions and proceedings which may be
instituted in the courts to enforce private or public
duties and the public discipline: writs, process, trials,
judgments, executions, etc. Law of this description,
being the machinery by which the ordinary law is
administered, is apt to be regarded as part of that
law; but it has no direct connection with conduct.
Its rules are not rules of conduct, but are incidental
to them and designed to make them effectual. They

Growth and Function 239

are sometimes, and quite accurately, distinguished
from the law with which they are so closely asso-
ciated, by putting them together with the law of
evidence in a special class called adjective law, in
contradistinction to the rules which really govern
conduct, which are appropriately styled substan-
tive law. The law of procedure cannot be created by
general ctistom. It is the work of conscious con-
trivance, and belongs to the category of public
machinery. As such it lies in the field of legislation;
but the actual work of shaping and adapting it
should, for obvious reasons, not be undertaken by
the Legislature itself, but should be delegated to the
body best capable of performing it. This is the
judges whose duty it is to apply it. They under-
stand what machinery is best fitted to facilitate their
action and make it effective, and, the working of it
being under their daily observation, they are able to
correct and reshape it as occasion may require. It
should be established, and from time to time im-
proved by what are called Rules of Court, which are
really legislation. The whole of this machinery of
government assumes that the body of the people
are living under a system of customary law which
governs their conduct in their relations with each
other. It does not purport to affect that law other-
wise than by providing the instrumentalities and
facilities by which it may be the better enjoyed and
enforced. Of course in all this body of contrivance,
with its multitude of officers, many commands are
prescribed concerning the duties of the officers
and of the members of the community in relation to

240 Law : Origin, Growth, and Function

the public establishment, and a vast quantity of
legal obligation and, therefore, of law is created; but
the nature of it is widely different from the law of
custom which governs the private transactions of
men.

LECTURE X

AT the conclusion of the last lecture I spoke of the
first of the rules that ought to guide in legis-
lation. I now continue the enumeration.

The next form of proper legislative activity con-
sists of commands directly affecting conduct. I mean
the Criminal Law. It is in a high degree important
that this, and its true place in the body of law,
should be well understood, inasmuch as many
disorders and mischiefs spring up out of mistaken
notions upon the subject. And in the first place,
there should be a clear notion of what a crime is in
the eye of the law. Wrong conduct, socially speak-
ing, is simply a departure from custom. Custom
being the only test of right and wrong in the law,
there can be nothing which in the view of the law is
wrong except a violation of custom. But all wrong
conduct is not criminal — that is, it is not properly
punishable by law. All crimes are violations of
custom, but all violations of custom are not neces-
sarily crimes. There are many departures from
custom of which the law takes no notice, or should
take no notice, but which it should leave to the juris-
diction of the moral forces of society. The line of
division between those offences which are properly
punishable by law and those the repression of which

241

16

242 Law, Its Origin

is wisely left to moral forces is the line of probable
violence. The function of the criminal law is to pre-
serve society from violence, for violence is war, and
threatens the existence of society. It may be asked
why all social offences should not be punished by some
legal penalty. The answer is that legal penalties
should be inflicted only where it is necessary. The
punishments of the criminal law fall with very unequal
weight upon the different victims. Little notice can
be taken of relative ignorance, guilty intention,
temptation, and provocation; whereas the discipline
of the moral forces is tempered by a regard for all
these circumstances, and is likely to be more effective.
In the next place, and more conclusively, the moment
the line of violent wrong is passed and offences of
little magnitude are subjected to legal punishment,
the hazard is incurred of including in the prohibition
and subjecting to punishment conduct which very
many, perhaps a majority, regard as right, and this
is tyranny, an abuse of law more fruitful in mischief
than many crimes. This line limiting the exercise
of criminal prohibition is deeply stamped on legal
history. I have already pointed out the fact that
before the institution of judicial tribunals the only
mode of punishing and repressing crime which in-
volved the use of force was by the employment of
self-help, the infliction by private hands of punish-
ment upon an offender. The evils of this condition
were the cause of the creation of such tribunals, the
purpose of their creation being not to supplant the
operation of the moral methods, but to obviate
the necessity of a resort to private violence, and thus

Growth and Function 243

the punishment of graver crimes was transferred to
the courts and became regulated by law. I have
referred also to the fact that any breach of the King's
Peace, which originally embraced a narrow territory
surrounding his person or possessions, but was sub-
sequently extended over the whole kingdom, was
regarded as a crime, and that nothing was punishable
as a crime which did not imply and carry with it such
breach. From time to time with the progress of
order and refinement, additions have been made to
the list of criminal offences, but the rationale by
which they are brought into that character is the
supposed direct tendency of the offence to lead to a
breach of the peace; and to this day any offence,
however free from actual violence it may have been,
is charged in the indictment to have been committed
by "force and arms," and "against the Peace of
our Lord the King," or, in this country, "against
the Peace of the People of the State." There is no
difference, apparently, between slander and libel ex-
cept that the one is oral defamation while the other is
written, and yet libel is an indictable offence while
slander is not; and the reason commonly assigned
for the distinction is that a written defamation is
more likely to lead to violence and a breach of the
peace. Language is employed in the ordinary defini-
tion of crime quite significant of that class of offences
which the law regards as calling for punishment.
They are called evils in themselves (mala in se) — that
is, evils of which no account need, or can, be given
other than that they are in fact wrong. Now, as
there is no test of right and wrong in the law save

244 Law, Its Origin

custom, mala in se are simply palpable violations
of custom, while the converse expression, mala pro-
hibita, indicates acts which the law makes criminal
without regard to custom.

This is all I need say concerning the original and
still primary class of criminal offences; but the
necessities of civilised, industrial society in modern
times have required an extension of the province of
penal law by the positive enactment of numerous
commands and prohibitions not to be found in the
law of custom. As communities become more
populous, as towns and cities increase in number and
size, and as industries become organised in estab-
lishments of great magnitude, the appliances of
machinery for manufacturing, locomotion, and trans-
portation become multiplied, and the degree of co-
operation required among the members of society
becomes prodigiously increased, and individuals
touch one another in many different ways, and con-
sequently the duties of each towards others become
multiplied and increased. Customs of precaution
and care become necessary and grow in importance.
A failure by a single person to observe the duties
thus prescribed may involve great injury to many
others. Under such circumstances the law of negli-
gence becomes of great importance and the need of
special rules is felt. The operation of custom in
fixing such rules is slow, and until they become
established all that a court can do, in the trial of a
case where a charge is made that one person has been
guilty of negligence causing injury to another, is to
leave it to a jury to say whether the accused person

Growth and Function 245

has used, in some cases, extreme, and in others,
ordinary, care; but there is a tendency in the courts
to insist more and more upon the adoption of special
positive precautions which experience has shown to
be necessary or useful in the prevention of accidents.
Legislation performs a useful office here by seizing
hold of these tendencies and converting growing
customs into positive rules. The numerous laws
specifying positive safeguards which railroads, steam-
boats, and other public conveyances and manu-
factories operated by machinery must supply belong
to this province, as also the rules of navigation de-
signed to prevent collisions at sea.

There is another frequent and proper occasion for
the employment of penal legislation in preventing
evils which arise from the competitive struggles of
modern life in industrial pursuits. The employment
of child labour is to be restricted, tenement building
needs regulation in order to preserve health, and in
these and other like directions positive injunctions
and prohibitions must be made and enforced. This
greatly increases the class of offences known as mala
prohibita.

So much concerning the various employments of
legislation in the field of criminal law, but here the
liability to cause mischief, in the attempt to remove
it, is very great and suggests a corresponding degree
of prudence and caution. So far as offences consist-
ing of those clear departures from custom which the
law denominates mala in se are concerned, the
danger is not great. Such offences already stand in
the popular mind as crimes which ought to be pun-

246 Law, Its Origin

ished, and the employment of regulated force should
take the place of irregular violence. However men
may differ as to whether it is good or bad to do this
thing or that, all are agreed that violence is wrong and
must be prevented and the common complaint is that
the State is less energetic in this work than it ought
to be. The principal danger lies in the attempt
often made to convert into crimes acts regarded by
large numbers, perhaps a majority, as innocent — that
is, to practise what is, in fact, tyranny. While all
are ready to agree that tyranny is a very mischievous
thing, there is not a right understanding equally
general of what tyranny is. Some think that tyranny
is a fault only of despots, and can not be committed
under a republican form of government; they think
that the maxim that the majority must govern justi-
fies the majority in governing as it pleases, and re-
quires the minority to acquiesce with cheerfulness
in legislation of any character, as if what is called
self-government were a scheme by which different
parts of the community may alternately enjoy the
privilege of tyrannising over each other. The princi-
pal evils of legal tyranny arise from the instrumen-
tality which it employs, which is always force.
What is called the tyranny of fashion, or custom
(using this word in its common sense), does no great
harm. No one is compelled to submit to it, and the
penalty of being unpopular is not ordinarily very
severe; but when force is called in to compel men to
act in accordance with the opinions of others rather
than their own, the worst mischief ensues. There
is a great misapprehension as to the extent of these

Growth and Function 247

mischiefs and also as to the cause of them. When a
law is made declaring conduct widely practised and
widely regarded as innocent to be a crime, the evil
consequences which arise upon attempts to enforce
it are apt to be viewed as the consequences of the
forbidden practice, and not of the attempt to sup-
press it; and it is believed that the true method of
avoiding, or doing away with, these consequences is
to press the efforts at enforcement with increased
energy. But when a mistake has been made, its
consequences can not be avoided by a more vigorous
persistence in it. The best means of inculcating
caution in this employment of criminal legislation
is to have clearly in mind its evil consequences.
The species of criminal legislation to which sumptuary
laws belong furnishes an apt illustration of them.
Take, for instance, the case of laws prohibiting the
manufacture or sale of intoxicating drinks. The
evils of drunkenness are so manifest that great
numbers of excellent people are impressed with a
conviction that some measures must be taken to
repress them. The first efforts in this direction were
a resort to what are called moral methods. The
attempt was made to arouse a public sentiment so
strong as to prevent men from indulgence, and
discourage the sale of the mischievous article; but
the results of such efforts are generally too slow
and gradual to satisfy aroused and earnest minds.
Besides the desire of doing good, the selfish determi-
nation is formed of carrying out a purpose, and the
purpose comes to seem so important that no inquiry
is made concerning the means except to consider what

248 Law, Its Origin

will be most effective. It suits the judgment of some
and the temper of others to convert the practices they
deem so mischievous into crimes, and they think that
if nothing else will prevent indulgence in them, the
fear of heavy punishment will at least be effective,
and indeed many think that the force of law is so
great that the mere enactment of a prohibition will
accomplish the desired end, and all are inclined to
believe that even if the laws are ineffective for the
purpose for which they were enacted, they will at
least do no harm. But men forget that their acts,
whether in enacting and attempting to enforce
written laws, or of whatever other nature, are sub-
ject to the great law of causality and will draw after
them their inevitable consequences. The law when
enacted will not execute itself. It requires the
active interposition of man to put it in force.
Evidence must be found and prosecutions set in mo-
tion, and as this is a task in which good men are
commonly found to be unwilling, or too indolent, to
voluntarily engage, others must be sought for who
will undertake it. The spy and informer are hired,
but their testimony is open to much impeachment,
and is met by opposing testimony often false and
perjured. The trials become scenes of perjury and
subornation of perjury, and juries find abundant
excuses for rendering verdicts of acquittal or per-
sisting in disagreements, contrary to their oaths.
The whole machinery of enforcement fails, or, if it
succeeds at all, it is in particular places only, while
in others the law is violated with impunity. At-
tempts are made to insure a more general and

Growth and Function 249

effective execution of the law by imposing the duty
of detection upon the ordinary policemen, and giving
them summary powers. This enables such officers
to extend indulgence for a price, and makes their
places positions of value which speedily fall into the
hands of those who will not scruple to sell their
indulgences, and bribery and corruption on a vast
scale are the result. The necessity felt by the
violators of the law to purchase protection carries the
struggle for the control of the police establishment
into politics, and mischiefs almost endless follow.
An especially pernicious effect is that society be-
comes divided between the friends and the foes of
the repressive law, and the opposing parties become
animated with a hostility which prevents united
action for purposes considered beneficial by both.
Perhaps the worst of all is that the general regard
and reverence for law are impaired, a consequence
the mischief of which can scarcely be estimated.

If, at the expense of all these evils, the reformation
sought by the law were really and fully effected, the
benefit would not be worth the price paid for it, but
it generally turns out in the end that the legislation
is wholly ineffective and that the condemned prac-
tices, through successful bribery and by various
devices, are carried on much to the same extent as
before the enactment of the law.

What a spectacle is thus afforded of the impotence
of man's conscious effort to overrule the silent and
irresistible forces of nature! The object the law-
maker seeks to gain by this legislation is to do away
with, or greatly diminish, the indulgence in intoxi-

250 Law, Its Origin

eating drinks, for, although the sale only is pro-
hibited, the real thing sought and expected is the
prevention of the use. He wholly fails to gain the
object in view; but objects not in view, and by no
means desired, are brought about on the largest
scale: vast and useless expenditure, perjury and
subornation of perjury, violation of jurors' oaths,
corrupt bribery of public officers, the local elections
turned into a scramble for the possession of the
offices controlling the public machinery for the
punishment of offences in order that that machinery
may be bought and sold for a price; law and its
administration brought into public contempt, and
many men otherwise esteemed as good citizens made
insensible to the turpitude of perjury, bribery, and
corruption; animosity created between different
bodies of citizens, rendering them incapable of acting
together for confessedly good objects!

The questions may be asked almost indignantly,
whether society must endure the open maintenance
of places where men are tempted to ruin themselves
and their families by indulgence in drink and are
led into the commission of the worst of crimes;
whether gambling and vice must be permitted to go
unrestrained ; whether children are to be allowed to
grow up in ignorance and idleness and become
mischievous members of society; in short, whether
society must content itself with waiting until
mischievous practices ripen into manifest crime
before it enforces its discipline, and refrain from all
attempts to prevent the operation of causes known to
be fruitful in the crimes it must eventually punish?

Growth and Function 251

It may not be easy to give answers to such questions
satisfactory to all, and the tasks of legislation are
often undoubtedly difficult. Any detailed con-
sideration of them is beyond my present purpose,
which is only to indicate the general nature and
function of criminal legislation and the general limits
within which it should be confined; but I do not
hesitate to say that any legislation which bears the
characteristics of tyranny, as I have defined that
term, is vicious in theory and has never yet suc-
ceeded, and never will succeed, in gaining its avowed
end, or in having any other than an injurious effect;
and I venture to add that if the zeal and labour
which have been employed by what are called the
better classes of society in efforts to enact and en-
force laws repressive of liberty, had been expended
in kindly and sympathetic efforts to change and
elevate the thoughts and desires of those less for-
tunate than themselves, a benefit would have been
reaped in the diminution of misery and crime which
compulsory laws could never accomplish. Moral
ends can never be gained except by moral means.
All the advances in civilisation and morality which
society has thus far made are due to the cultivation
and development of those moral sympathies which
find their activity in co-operation and mutual aid.
Crimes must be punished, and with requisite
severity; but mistake in determining what con-
stitutes crime should be avoided. We must obey
the laws even when ill-advised, and must therefore
regard as crimes what they declare to be crimes; but
in the view of science, conduct can not be made

252 Law, Its Origin

criminal by a legislative declaration. In the true
sense, crimes are those grave departures from custom
which disappoint expectation, excite resentment, and
produce revenge, and directly involve society in
disorder and violence. The chief function and first
work of organised and conscious society was to
preserve internal peace and order by substituting the
regular and formal punishment of such offences in
the place of private chastisement and revenge.
Murder, robbery, stealing, house-breaking, cheating,
were from the first, and are still, universally regarded
as crimes deserving punishment, and even admitted
to be so by the offenders themselves. They are
crimes because they are gross and palpable de-
partures from custom rendering peaceful society im-
possible; but practices which by their nature do not
directly and violently disturb society, whatever may
be their ultimate tendency and effect, and which all
engage in who desire to do so, cannot in a true sense
be converted into crimes by a legislative declaration
promoted by one part of society against the wishes
of another. Crime, like law, can not be made, but
y must be found. Society is not an institution created
by voluntary action for mutual improvement and
discipline, but is a great fact springing from the nature
of man as a social animal. It existed for countless
ages before it acquired a conscious organism, and
passed through many successive stages of progress
in accordance with natural laws. Its nature was in
no respect changed when man came to assume a
conscious, but limited, control over it, and the suc-
cess of man's administration of that control lies in

Growth and Function 255

his correct perception of those fundamental laws
which it must necessarily follow, and shaping the
exercise of his limited power to aid and not to
supersede those laws.

The illustration I have taken from laws designed to
prohibit acts which custom does not condemn sug-
gests, however, a form of legislation not open to
objection. Those features of the use of intoxicating
drinks which are the sources of evil, such as drunken-
ness in public places, and disorderly resorts, are
condemned by custom and directly lead to violence
and crime. Laws designed to suppress these prac-
tices are in accordance with the true principles of
legislation. Intoxication in public may therefore be
punished, and the traffic may be restricted to a class
of persons of approved responsibility. If the laws
of this character we now have do not accomplish all
that may be fairly expected from them, the fault lies
in lack of proper execution arising mainly from the
negligence and indifference of citizens themselves.

Thus much concerning the proper employment of
legislation in what I regard as its special province,
that of Public Law, and concerning the rules of
wisdom and prudence which should be observed in
contriving and shaping it. The general rule of
wisdom which embraces all these precautions is this :
that it should be kept constantly in mind by the
legislator that the function of the law resting upon
custom, the function of legislation and the function,
indeed, of all Government are the same, namely, to
mark out the sphere in which the individual may
freely act in society without encroaching upon the

254 Law, Its Origin

like freedom in others; that this sphere is primarily
marked out by the unconscious operation of custom
with a wisdom far beyond that of the wit of the
wisest; that the function of conscious government,
whether in the form of legislation or otherwise, is
subsidiary to it, and that all legislation should observe
this subordination and never attempt to subvert or
supersede that which it is designed to aid.

This brings me to the consideration of the remain-
ing branch of legislative activity possible under the
third above mentioned form of expressing the public
will, namely, that in which it acts upon the Private
Law. Of course those who believe with Bentham
that nothing is entitled to the name of law except
a direct command of the sovereign power, and that
all law declared and enforced by the mere authority
of a judge is a fraudulent usurpation of the office
of the Legislature, must reject the limitations I have
laid down and assert that the whole field of Private
Law belongs to the province of legislation. And so
also must those reject them who, like Austin and
Maine, while not regarding the action of the judiciary
as a usurpation, and indeed while imputing it to the
sovereign by saying that he commands it because he
permits it, think that Order is yielding to Force,
and that all the unwritten Private Law is destined
to become the direct written command of the
sovereign. According to these jurists, the whole law
should be transformed into written codes, either now
or at no distant period. While I must regard these
opinions as refuted by what I have already said,
there is a form of codification which may, even in

Growth and Function 255

the opinions of those who do not accept the doctrine
that law is a command, be practicable and expedient,
and I have therefore reserved that subject for a later
and more particular discussion. What I have now
to say relates to those other employments of legisla-
tion in Private Law which are consistent with my
own view of the respective provinces of Public and
Private Law. One instance in which legislation may
be made productive of advantage is in removing
uncertainty and confusion. We have seen that no
method is in general provided, or needed, in order to
make custom known. The term itself imports that
it is known to all. Otherwise it would not be custom.
But cases of doubt do arise. Practices which are in
reality departures from custom may become so
frequent as to appear to be customs, whereas they
are only bad practices. These are cases which oc-
casion law -suits. Some one insists that a certain
act is sanctioned by custom ; another insists that
it is a bad practice only. An expert — that is, a
judge — is appealed to, and his determination estab-
lishes what is custom. But another judge in another
locality may reach a different conclusion, and
doubt and uncertainty arise. All such uncertainty,
which is really the result of a difference of opinion
among experts, may be removed by an appeal to a
higher tribunal the decisions of which the lower
ones are bound to follow, and uncertainty of this
sort is best left to this method of correction.

But there is another species of uncertainty in
the customary law. Sometimes it comes from the
fact that different but neighbouring communities

256 Law, Its Origin

belonging to the same State were of different ori-
gin and history and had different customs which
were adhered to in the different localities after they
had become united under one nationality. This was
the condition in England after the Anglo-Saxon
conquest. As these communities become more
closely united and blended together there is a tend-
ency towards a reduction of such differences to
uniformity, and eventually uniformity would be
brought about; but the movement would be slow,
and meanwhile much confusion would exist, and
consequent uncertainty in the determination of
rights. The approach to uniformity may be usefully
assisted and accelerated by legislation. For exam-
ple, the extent of the authority possessed by the
owners of personal property to bequeath it by
testament appears to have been at one time a matter
of much doubt. By some it was thought that the
most ancient custom common to the whole island
of Great Britain permitted the owner to bequeath
one third only, reserving the other two thirds for
the wife and children. Others insisted that different
customs existed among the different principal com-
munities; but there was a general inclination, follow-
ing the natural desires of owners, towards the
complete authority of the latter. This tendency
was recognised, and by several statutes passed in
the reigns of William and Mary, William III., and
George I. the rule permitting the owner to bequeath
the whole was established successively in York,
Wales, and London, bringing the last of those
provinces into harmony with the rest of England.

Growth and Function 257

This tendency in countries whose populations are
made up of people once living under separate
governments, and having different customs and
laws, towards a unification of law, beginning first
spontaneously and then taken up and consummated
by legislation, is found in the history of many
nations, and was, as I suppose, the main original
cause of the Code Napol6on and of the recent codifica-
tion in the German Empire.

Again, in the ordinary transactions of life, in con-
sequence of negligence, ignorance, or fraud, disputes
arise between individuals concerning past transac-
tions with each other. One man alleges that another
owes him money or service, in consequence of a
contract, which the other denies. One may have
forgotten or never clearly understood what had
taken place between them, or fraudulently intended
to enforce a claim in his own favour or to escape an
obligation. Such disputes would have been avoided
if the parties had exercised the prudence of ex-
pressing their transaction or promise in writing,
and the practice became common of employing
writing in the more important affairs. A court could
not, however, without making law, declare that
this, and not that, contract should be reduced to
writing. The legislation commonly known as the
Statute of Frauds,1 by which certain classes of con-
tracts were required to be in writing, was enacted to
supply this want.

Again, society in most fully civilised nations is in
a condition of incessant change, which means that

1 29 Charles II.

258 Law, Its Origin

customs are subject to incessant change and that the
law resting upon custom must change in accordance
with it. New arts., new industries, new discoveries
are continually arising, involving changes in popula-
tions, employments, and all other incidents of life.
These and the diffusion of education create new
aspirations and hopes which endeavour to realise
themselves. In early society, prior to the organ-
isation of legal tribunals, the final and complete
establishment of a change in custom encountered no
other obstacle than the tendency of some part of
the community to hold on to the existing custom.
This opposition, however, would gradually disappear,
but the process was so slow as to be nearly imper-
ceptible, and consequently to be free from great
attending inconvenience. The establishment of
courts, however, although designed to remove un-
certainties and confusion in customs, and although
having for the most part this effect, in one particular
became the cause of those very evils. In order that
they might produce certainty, it was necessary to
treat their decisions as authorities and binding de-
clarations of the existing law. The judges could not
well say that their own decisions or those of their
predecessors were not the law, and this obligation
tended to make the process of change difficult.
There would, indeed, begin to be a tendency not to
follow precedent except in cases precisely similar,
and the departures would extend wider and wider
until the precedent had become so undermined that
even the courts would disregard it. Thus a pro-
tracted period of uncertainty would arise, the

Growth and Function 259

abbreviation of which would be a great advantage.
In such cases the Legislature, observing the tendency
to change and perceiving that in the end it would be
brought about, could most usefully terminate the
existing uncertainty by making the change an accom-
plished fact. The existing law concerning the
rights of married women is in large measure the
fruit of legislation of this character. The ancient
doctrine that during coverture the person and
existence of the wife were merged in her husband,
that her personal property, choses in action, and the
income of her realty belonged to him, was firmly
established in the law down to a period not very
distant and involved many harsh consequences.
Advancing civilisation and refinement many years ago
began to exhibit themselves in the better treatment
of women. The courts of equity, always the first to
catch the growing spirit of humanity and justice,
favoured this progress by extending a larger measure
of protection to them than was allowed in courts
of law, and finally the Legislature, foreseeing the
results at which the tendencies of society were aim-
ing, by numerous statutory enactments, gave married
women the right to appeal to courts of law, and
preserved for them after marriage substantially the
rights of unmarried women.

Another occasion for legislative action such as I
am now describing is found where incongruities
have arisen in consequence of unharmonious action
between the laws as enacted and customs sanctioned
as lawful by the courts. The celebrated English
Statute of Wills is illustrative here. There was in

26o Law, Its Origin

England, at least after the Norman conquest, very
little power to dispose directly of real property by
will, but after the invention of the doctrine of Uses
the expedient was resorted to of a conveyance of land
to one person for the use of such other persons as
the grantor might name, and he might name them
in his will, and in this manner a gift of land to take
effect upon the death of the owner might be made.
The practice was recognised by the courts and
devises of land by such means became very common.
But the system of Uses gave rise to practices of a
different character deemed mischievous, and in order
to put an end to these Parliament by the celebrated
Statute of Uses l destroyed, or sought to destroy,
Uses themselves by directing that the use should
be converted into possession. This made, or seemed
to make, the contrivance by which devises of land
became possible ineffectual, which was not the in-
tention of Parliament, and therefore a few years
later the Statute of Wills was enacted by which full
power was given to the owners of real property to
devise it directly without resort to any contrivance.
Another occasion for legislation, and the last of
which I shall speak, is where conflicts arise between
different bodies or classes in respect to their rights
against each other, and attempts are made by one or
the other class to establish their pretences in practice,
and resistance is met with. The conflicts so menac-
ing at the present day between labourers and the
employers of labour are of this character. Pro-
tracted as they are through long periods, practices

i 27 Hen. VIII., c. 10.

Growth and Function 261

grow up under which the parties become organised,
as it were, in hostile camps, and the public peace
becomes endangered; the passions become inflamed
and whole communities are divided against each
other; great difficulty arises in the execution of the
ordinary law, and what may and what may not be
lawfully done becomes itself clouded with doubt and
uncertainty. It would be extremely difficult at
present to devise any law the execution of which
would compose the strife now going on. It seems
necessary in such cases that the conflict should con-
tinue until, by the attrition between the parties, some
reconciling custom begins to take form, and to fore-
shadow the promise of peace. Then the time will
have arrived for wise legislation to put the growing
tendencies into enacted law. It will be remembered
that in an earlier lecture I pointed out that the
Laws of Solon for Athens and the XII. Tables of the
Roman Law were legislation of this character. The
social conditions such as I have mentioned are ex-
traordinary political exigencies, and whenever these
arise they furnish occasion for the interposition of
the legislative power. Inasmuch as in these internal
conflicts neither party will yield to the other without
a trial of strength they would proceed, unless arrested,
to internecine war in which the vanquished would
be obliged to submit. The office of legislation is to
permit this war to be carried through to its result,
but without violence. The doctrine that the major-
ity must rule has a rightful sway here, for violence
can be avoided only by permitting the stronger
party to prevail without resort to actual force, and

262 Law: Origin, Growth, and Function

the stronger party is made manifest by the control
of the Legislature. Such legislation, imposing, as it
does, the thoughts and beliefs of one part of society
upon another, is tyrannical in its nature, but in such
cases, as violence can not be otherwise avoided,
tyranny is necessary.

LECTURE XI

THE subject of codification, thus far reserved t
belongs under the general head of legislation, and
should be treated before departing from that topic.
Codification in the view of many distinguished
jurists, both in the past and at the present time, is
the method by which the improvement and per-
fection of the body of our law is to be sought. This
is quite inconsistent with the theory of the law which
I have endeavoured to support, and makes it in-
cumbent on me that I should state the grounds and
reasons which seem to me to show it to be erroneous.
In the first place, it is important that we should
clearly understand what the advocates of codification
mean by it. It will be remembered that I have
attached much importance to the distinction between
Public and Private Law, assigning to the former all
those branches of law in which society as a whole is
directly concerned, and which embrace the methods
and instrumentalities by which society performs its
various particular functions, and to the latter that
body of rules which relate particularly to the trans-
actions of individuals as between themselves; and
that I have regarded Public Law as falling within
the proper province of legislation, and Private Law
as being, in general, irreducible to writing, and

263

264 Law, Its Origin

therefore not properly the subject of legislation. This
distinction is not regarded as fundamental by the
strictest advocates of codification. They proceed
upon the view that every law is a command, and
for that reason is most properly expressed in writing,
and consequently, that a codification embraces and
means the whole body of the law reduced to a con-
cise, harmonious, and orderly form and made obli-
gatory by a written enactment. In their view,
indeed, the orderly arrangement of the law requires
a disposition under leading titles, and the French
Codification and that proposed by the late Mr. David
Dudley Field, of New York, embrace a scheme of
separate codes, one for each of the principal depart-
ments of Public Law, and another for Private Law.
Now, that part of the law which, in accordance with
my views, is necessarily, or properly, expressed in
writing, that is, Public Law, tends to become, from
the operation of numerous additions, amendments,
and repeals, complex, voluminous, confused, and
often inconsistent, and requires from time to time
to be revised, reduced in volume, and simplified.
This work is frequently performed, and our numerous
revisions of statutory law are instances of it, and if
the term codification were limited to such a work,
I should make no objection to it. But what is
generally intended by the believers in codification
is the statement in writing not only of Public Law,
but of all the rules of Private Law also, so that
whether we wish to know what the political divisions
of a State, or what the duties of public officers are,
or what conduct is to be punished as criminal, or

Growth and Function 265

what contracts are to be enforced, or, in general,
what rights may be asserted by one man against
another, we must be guided by the statute-book.

The reason upon which codification as thus under-
stood was supported by its original and illustrious
champion, Jeremy Bentham, was derived mainly
from his belief in the efficacy of legislation. I have
heretofore observed that in his view, the conduct
most conducive to general happiness, that is, of the
greatest good to the greatest number, could be
ascertained beforehand by intelligent men, and
could therefore be stated in writing and enacted as
law, and he seemed to think that if it were once so
enacted the vast change for the better which it would
everywhere produce would make society not only
satisfied, but delighted with it, but that if all were
not satisfied with it they should be compelled to
accept it and govern their conduct accordingly. He
was a courageous as well as a skilled logician, and
never flinched from any true deduction from his
theory. To any suggestion that upon his doctrine
the task of the Judge would be made simply that of
interpreting words, his answer would be that this was
just what he meant; that there was nothing he so
much detested as judge-made law, and that he would
abrogate it, root and branch, by a declaration that
there should be no enforceable rules outside of the
code. To any suggestion that such a priori rules
must often, through ignorance, carelessness, or
negligence, be so framed as not to be applicable to the
unknown transactions of the future and thus occasion
injustice and inconvenience, he would say that such

266 Law, Its Origin

evils would be far less than those arising from the
uncertainty, expense, and trouble incident to un-
written law, and, besides, that they would be tem-
porary only, and could be remedied for the future by
legislative amendments. If he were reminded that
his proposal seemed contrary to the experience of
mankind, of which experience the common law was
the fruit, he would have answered that the common
law was the fruit of a fraudulent usurpation of
legislative power by the Judges! He would not
hesitate to tear down the majestic fabric which the
slow processes of nature, operating through ages,
had reared, and replace it with the wretched in-
vention of some committee in a legislature.

Lest I be thought guilty of exaggeration, I must
borrow from his own language contained in the
remarkable communications which he seriously ad-
dressed to the People of the United States, to the
Autocrat of all the Russias, and to James Madison,
President of the United States, imploring them to
accept and to endeavour to establish in their re-
spective nations the complete codes of law which
he would undertake to construct for them. In his
letter first above mentioned, that addressed to the
People of the United States, he said:

Yes, my friends, if you love one another — if you love each
one of you his own security — shut your ports against our
common law, as you would shut them against the plague.
Leave us to be ruled — us who love to be thus ruled — leave
us to be ruled by that tissue of imposture ; leave us to be ruled

by our gang of self-appointed ; by our lawyer-ridden,

by our priest-ridden ; leave us to be ruled by those

who never cease to call upon us to rally around our

Growth and Function 267

that poisoned and poisonous by the

name of which they have made us slaves.

No: never, never let slip out of your mind this lesson —
wheresoever common law is harboured, security is excluded.1

It is manifest how he intended the blanks to be
filled. And in his above mentioned letter to Pres-
ident Madison he said:

Yes, Sir, so long as there remains any the smallest scrap
of unwritten law unextirpated, it suffices to taint with its
own corruption, — its own inbred and incurable corruption, —
whatsoever portion of statute law has ever been, or can ever
be, applied to it. 2

Yet he could not be insensible to the spectacle
of judicial wisdom which characterised the action of
the English courts, and he added in the same letter
from which the last citation is taken:

All this while, incapable as, in respect of its form, it is of
serving, in any tolerable degree, in its present state, in the
character of a rule of action and guide, to human conduct,
nothing could be much farther from the truth, than if, in
speaking of the matter of which English common law is
composed, a man were to represent it as being of no use.
Confused, indeterminate, inadequate, ill-adapted, and incon-
sistent as, to a vast extent, the provision or no- pro vision would
be found to be, that has been made by it for the various cases
that have happened to present themselves for decision; yet,
in the character of a repository for such cases, it affords, for
the manufactory of real law, a stock of materials which is
beyond all price. Traverse the whole continent of Europe, —
ransack all the libraries belonging to the jurisprudential
systems of the several political states, — add the contents
all together, — you would not be able to compose a collection
of cases equal in variety, in amplitude, in clearness of state-

lBentham's Works, vol. iv., p. 504.
a/Wd., p. 460.

268 Law, Its Origin

ment — in a word, all points taken together, in instructiveness
— to that which may be seen to be afforded by the collection
of English Reports of adjudged cases, on adding to them the
abridgments and treatises, by which a sort of order, such as it
is, has been given to their contents.

Yet among those who admired Bentham and
accepted his doctrine we find names illustrious in
law and philosophy such as Sir Samuel Romilly,
John Austin, James Mill, John Stuart Mill, and
many others. It seems strange that such powerful
minds should not have perceived the error of a
system so opposed to the universal practice of man-
kind; but it should be remembered that in Bentham's
day the truth of the supremacy of the great law of
causality as well in the moral as in the physical
world, although generally admitted, was not carried
out to its consequences. The law of Evolution so
dominating in its influence upon recent thought, had
not been stated* Psychology, Biology, and Soci-
ology, now assuming the attitude of sciences, were
wholly undeveloped, and the facts with which those
sciences are concerned had been but little studied.
The truth that society, like every other phenomenon
in nature, was a condition resulting from the operation
of causes reaching back into periods infinitely remote,
was not understood. Had it been more clearly seen
that human conduct, the great feature of society,
was necessarily customary because determined by
thought, or feeling, which being determined by
original constitution and external environment, both
similar, must also be customary, it would have been
seen that the actual rules which conduct must follow

Growth and Function 269

are to be found in custom and cannot be formed or
changed per saltum by an act of legislation; and that
the conscious function of man in the making of law
was the by no means humble one of discovering
the tendencies toward which custom was aiming and
assisting in their operation.

There are still numerous believers in the theory
of codification. They cherish an admiration for
Bentham and his doctrines. They accept his defini-
tion of law as a command, but, less courageous than
he, they recoil before the reductio ad absurdum which
that definition really involves. Nor do they have
the boldness to assert that it is possible to draw
from the theory of Utility, or any other theory, a
body of a priori rules which, if enacted by a legis-
lature, could be made to operate with effect and
advantage. They are inclined to admit that the
actual body of our present law, formed by the con-
tinuous declarations of judicial tribunals, and learned
by the study of reported precedents, is an altogether
excellent instrumentality, in general, for the govern-
ment of conduct. They admit that in an ignorant
and rude condition of society no satisfactory code
could be constructed, but they insist that there is a
point in the life of every civilised State at which all
important legal principles have been discovered and
are really known, and that when that point is reached
laws can and ought to be stated in writing, and that
by doing this a prodigious amount of existing evil
and inconvenience in the form of doubt and un-
certainty in the administration of the law, and labour
and expense in acquiring a knowledge of it, will be

270 Law, Its Origin

done away with. That I may fairly represent the
views of this class of believers in codification, I
gather a summary of them from the Introduction
to the Civil Code, reported to the Legislature of the
State of New York by the Commission constituted
under the Constitution of 1848, and which is under-
stood to have been prepared by the late Mr. David
Dudley Field. The propositions embraced in this
Report are substantially these:

First: Whatever is clearly known, can be clearly
stated in writing, and therefore, all that is clearly
known of law can be clearly stated in writing;

Second: A Code therefore is practicable, for a
Code is but the simple and orderly statement in
writing of all we know of the law;

Third: It is true that we cannot foresee what the
law would be for new cases, that is, for new groupings
of fact arising in the future, but we are not obliged
to lay it down for such cases, and should not attempt
to lay it down in a Code.

Fourth: The benefits which would be derived from
a codification of the law would be very great in num-
ber and variety; the law would be rendered much
more clear and certain, and instead of necessitating
a search through a library of books, could be found
in a single volume, and the ordinary layman could
obtain that knowledge of its rules to which every
one is entitled who is bound by them.

This reasoning, if such it may be called, contains
nearly every form of error. The first proposition is
a mere truism. Who has ever doubted the possi-
bility or expediency of reducing our knowledge of

Growth and Function 271

the law, as of everything else, to writing? It com-
pletely justifies, were justification needed, the very
thing we have been doing ever since law came to be
thought of, by our digests and treatises which are
reductions of all we know of the law to writing,
but it justifies nothing more. The second proposi-
tion would be true if stating law in writing and
enacting law in writing were the same thing, but
things more different from each other could scarcely
be imagined. Stating law is the scientific work of
putting into orderly form those customary rules of
conduct which men in society have come to observe,
and requires scientific knowledge in any one under-
taking the task. Enacting law is the giving of a
command such as a superior gives to an inferior, and
does not absolutely require any knowledge at all
in him who gives it, and such commands are in fact
often given by those who have no, or little, know-
ledge or whose knowledge is of a kind not at
all desirable. Stating a rule of the common un-
written law is putting into words a rule by which
all conduct of the kind described may, so far as
the past enables us to determine, be governed con-
sistently with the sense of justice, but which
future experience may require to be restricted,
amended, or enlarged. Enacting a rule of the com-
mon law is making an absolute rule by which all such
conduct must be governed, regardless of the sense
of justice. I may thus illustrate the difference: —
when the rule was first declared that a contract
insuring a ship was not valid unless the assured, in
applying for the policy, had disclosed all knowledge

272 Law, Its Origin

he possessed, material to the risk, it amounted to this
only — that in cases like the one decided, such disclosure
was necessary; that is, that under certain known
conditions, disclosure was requisite. The decision
carried our knowledge thus far and no farther, and
if the law thus decided were to be precisely stated,
the statement would be that under the circumstances
of the given case a disclosure by the assured of
knowledge material to the risk must be made. Now,
if we were to enact the law which had thus been
made known and confine the enactment strictly to
our knowledge, the written rule would correspond
exactly to the judicial declaration and be, that under
such circumstances as the given case presented dis-
closure of knowledge was requisite. It is quite
obvious that such an enactment alone would con-
form to the codification described in the proposition
we are dealing with. It would be codifying the law
so far as it was known to us; but while it is all that
the defence of codification which I am considering
professes to demand, it is not what it really demands.
It would really enact unconditionally that the
applicant for marine insurance must disclose what-
ever knowledge he has material to the risk. Such
an enacted rule would govern cases not only similar
to that in which the decision was made, that is, cases
of a certain known character, but all cases of what-
ever character, whether known or unknown. The
difference will appear if we suppose a case to arise
after the enactment, in which an action is brought on
a marine policy and it appears that the assured had,
at the time of applying for it, knowledge material

Growth and Function 273

to the risk which he did not disclose, but it also
appears that the underwriter, at the time, possessed
the same knowledge. Common sense and reason tell
us that in such a case the rule requiring disclosure
has no just application; common sense and reason
no longer govern the case. A rule has been enacted
in writing requiring disclosure and the policy must
be declared void on account of concealment.
Codification, therefore, however limited or disguised,
cannot, if it is made to have any effect at all, be
confined to what is known of the law. Instead of
declaring rules applicable only to known cases, and
those like them, it declares rules applicable to all
cases, known or unknown, described in the law.
Mr. Field in the Introduction above mentioned,
denies this : He says :

" This Code (his proposed Civil Code) is undoubtedly the
most important and difficult of all ; and of this it is true that
it cannot provide for all possible cases which the future may
disclose. It does not profess to provide for them. All that
it professes is to give the general rules upon the subjects to
which it relates which are now known and recognised."

But Mr. Field, if he was fully aware of what he was
saying, could scarcely have been sincere. Where, I
beg to inquire, is any such profession as above men-
tioned set forth in his code, or in any proposed
codification? If that be what he really intended by
codification, he certainly could not have objected to
have the intention clearly expressed. He could not
have objected to begin it with an article framed in
his own language as follows: "This code is intended
to give the general rules on the subjects to which it

18

274 Law, Its Origin

relates which are now known and recognised." But
as this would have utterly destroyed his code, qua
code, by converting it into a ridiculous digest, he
either did not mean that his code should have the
limited operation he asserts for it, or he intended
to conceal his meaning while he was urging its
adoption. This notion that the operation of a rule
may be restricted by making it more general, seems
highly absurd. Every one must see that the more
general an enacted rule is, the more of future un-
known cases it will cover. Suppose a general rule
were enacted that promises made upon consideration
were binding. This, if it is made to mean anything,
means that all such promises are binding, and the
rule would cover a multitude of invalid promises, such
as those made by infants or insane persons, or fraud-
ulent promises, and promises against public policy
Every case of a promise made on consideration,
present or future, known or unknown, would be
absolutely governed by such an enactment, and it
would excite a smile of derision in any court called
upon to interpret the rule to suggest that it did not
process to cover future and unknown cases.

There are some so-called practical minds who,
while admitting the force of the reasons I have given
for rejecting the theory of Codification, still think
that there is a tendency towards it at present which
cannot be resisted, and that this affords some proof
that the system possesses real advantages, and they
seem inclined to yield to this evidence. Their view
seems to be that, though it is theoretically impossible
to make law by legislation, under which questions

Growth and Function 275

arising upon future novel transactions or new group-
ings of facts, can be correctly adjudicated, yet the
evil and inconvenience arising from this are ex-
aggerated, and that the transactions of the past
which have fallen under judicial decision have
presented a variety and complexity sufficient to
produce a full development of legal principles, and
that the transactions of the future will be, in the
main, simply repetitions of those which have already
been considered — not indeed repetitions in all details,
but in all material features, and that if the law, as
at present developed and ascertained, were enacted
in writing, there would not be very many instances
in which it would fail to dispose correctly of disputes
as they arise, and that the evil and inconvenience
which would occasionally result from its ill-adapta-
tion to new groupings of fact would be outweighed by
the benefit which would be derived from the greatly
increased certainty and ease of acquisition which, as
they suppose are the distinguishing advantage of
codified law.

To think that an unscientific method may, on the
whole, be preferable to a scientific one, is a notion to
which not much indulgence should be extended
within the walls of a university; but in the endeavour
to secure the adoption of scientific truth the argu-
ments of those who are called practical men should -not
be altogether dismissed, even though they should be,
as they often are, merely superficial or ignorant men.
The view suggested is that while rules of law enacted
by legislation in a code might be of inferior quality as
instruments for the government of conduct, they

276 Law, Its Origin

would tend to diminish the element of uncertainty in
the law, and be of great advantage in this way, but I
apprehend that this apology for codification has quite
as little foundation as any other. What is the nature
of that uncertainty which, to some extent, attaches to
unwritten law? As to cases which have happened
in the past and have been adjudicated upon, there is
no uncertainty. The precedents make everything
plain, but when a case arises different in some respect
from any preceding one, uncertainty may arise. One
person thinks that the new element of fact which
makes the case a novel one is not material and that
the rule already established should govern; an-
other thinks it material and that it should constitute
an exception, or matter for a new subclassification.
Take for example, the case of marine insurance as
we may suppose the law upon that subject to have
grown up. An underwriter insures a ship against
the perils of the sea, and she is lost or damaged by
such perils. There is no uncertainty here. Con-
tracts of insurance have long been customary. The
event having occurred against which the insurance
was made, the insured expects to be made good and
the underwriter equally expects to indemnify him.
Another case of such insurance occurs and a similar
loss, but the underwriter now learns for the first time
that the ship was unseaworthy at the beginning of
the voyage. Let it be supposed that the ship owner
himself did not know that she was unseaworthy. He
demands his indemnity and perceives no sufficient
reason why he should not have it. It is the universal
custom for men to perform their contracts, and in the

Growth and Function 277

case of marine insurance, in particular, multitudes of
instances had occurred in which losses were promptly
paid; in other words, his expectation of payment,
his feeling that he ought to be paid, his sense of jus-
tice— all different expressions of the same thing, are
founded upon this custom. If we employed the
language of logic we should say that he assigned
the case to the class of binding contracts. But the
underwriter takes a different view. He says "No
intelligent and honest man sends an unseaworthy
ship to sea. The universal custom is the other way.
There may be exceptions, but they are very few. All
ship owners have their ships examined and put in
complete condition to meet the perils they are likely
to encounter, and if any one fails to do this he is
grossly negligent. I had a right to rely on this cus-
tom; I did rely upon it and supposed I was insuring
a seaworthy ship." The ship owner replies, "No
rule has ever as yet been laid down to the effect that
an applicant for insurance warrants that his ship is
seaworthy. You are endeavouring to incorporate into
the contract a stipulation which is not to be found
there. I did not deceive you. You could have ex-
amined the ship as easily as I could, and if you failed
to do so the fault is your own. I know very well
that ship owners are in the habit of examining their
ships before sending them to sea. I examined this
one, but did not happen to discover the defect."
The case is made the subject of litigation, the
reasons of the contending parties are subjected to
close examination, and the final decision is that there
was in the contract an implied warranty that the ship

278 Law, Its Origin

was seaworthy, and consequently that the assured
was not entitled to recover for his loss. Here was an
uncertainty arising from a reasonable doubt concern-
ing the category in which a particular case should
be placed. It was terminated by the decision; but
doubts of the like character continually arose in
the development of the same branch of the law, as
cases presenting novel features disclosed themselves.
When a ship owner, having a ship at sea uninsured
or not fully insured, and having received intelligence
that she had encountered severe weather which might
have damaged or destroyed her, effected an insur-
ance upon her without disclosing his knowledge, and
a loss having occurred, made a claim for indemnity,
it was a matter of uncertainty whether the law should
allow it. The decision resolved that and added a
new rule to the law of insurance, and when a similar
claim was made upon a policy effected under like
circumstances, and with a like failure to disclose, but
with the new feature that the underwriter actually
knew, from other sources, all the information which
the assured failed to disclose, still another uncer-
tainty arose, which was in turn removed by judicial
decision, and another rule was added to the same
branch of law. In this way, the whole law of insur-
ance has been built up, and what is true of insurance
is true of every other branch of the unwritten law.

If we consult the books of reports, the digests, and
treatises, with the view of discovering how much of
the uncertainty in the unwritten law is assignable to
the same cause, namely, transactions presenting
novel features, we shall find that nearly all is of this

Growth and Function 279

character, and that it should arise from this source,
and exist to such a large degree, will excite no wonder
when we again reflect upon what our analysis has in-
formed us to be the true nature of the science. It is
the examination of the features of transactions and
assigning them to the jural classes in which they be-
long, or creating new classifications when this is
needed; and as the law applicable to any case can not
be known until this operation has been performed, it
can not be known for any new case until such case has
come to light and has been subjected to judicial de-
cision. So far, therefore, as the future discloses to
us new groupings of fact, the law must necessarily be
uncertain, and inasmuch as the world and life are
forever developing and displaying new features, this
uncertainty will forever continue, and as it is accord-
ing to the order of nature it can not be wrong or re-
grettable. To contend with such uncertainty, to
dispel it by the exertion of our highest powers, is part
of the discipline of life and the glorious arena for
the display of those faculties which our profession calls
into exercise. The work may be difficult, but diffi-
culty is necessary to progress. "Progress is the child
of struggle, and struggle is the child of difficulty."

Such being the nature of the uncertainty of the
unwritten law, it is manifest that codification, how-
ever defined or modified, can do nothing to remove it.
It can be cleared up only in the way pointed out
by patiently scrutinising the features of each novel
grouping of facts, as it presents itself, and determin-
ing the classification to which it belongs, but codifica-
tion, at the start, refuses to adopt this method, and

280 Law, Its Origin

assumes to be able to classify transactions before
they come into being, and, therefore, before they can
be known.

There is a sort of unconscious belief with the prac-
tical minds of whose views I am speaking, that
though enacted rules of law may not well suit many
transactions in the future, yet that, being enacted,
men will conform their conduct to them, and that
thus uncertainty may be diminished.

But this supposes that we now have a fully devel-
oped and accomplished world, and that hereafter we
are not to be confronted with novel transactions to
any considerable extent. There is nothing to justify
such an expectation. If we were to compare differ-
ent periods in the past with the view of ascertaining
in which one there was more of novelty in the con-
junctures challenging judicial inquiry and doubt, I
apprehend that the last century would be pre-eminent.

I have been speaking of one particular source of
uncertainty in the law, that arising from our in-
ability to foreknow an ever-changing future. But
there is another even greater. Uncertainty arises
whenever, from any cause, men come to differ in
their opinions about the law. Now of all the causes
creating uncertainty in opinions and beliefs the
imperfection of language is perhaps the greatest.
The most learned men have been employed un-
ceasingly ever since the existence of the Christian
Church in interpreting the Bible, and yet all Christen-
dom is split up into sectarian divisions, based upon
conflicting interpretations. Desolating wars have
been waged as a consequence of such uncertainty.

Growth and Function 281

Our own people have been divided into political
parties, one of which interprets the language of the
Constitution in one way, and the other in another.
It would require many volumes to contain the record
of the numberless conflicts in the Courts of England
and the United States concerning the interpretation
of a single statute — the Statute of Frauds — though
it was framed by one of the greatest lawyers that have
ever lived. Writing is the art of communicating
thought by means of visible signs, every different
thought having a different sign or signs. The
number of signs is infinite, and to know them well
and the exact signification of each is one of the
rarest of accomplishments. The great majority even
of educated men express their thoughts in language
of every variety of uncertainty. Writers, however
skilful, may not completely express the thought
intended to be communicated, or may use an in-
appropriate word, and thus convey a thought
different from the one intended, and those of only
ordinary skill fall into numerous errors. A written
rule of law tainted by any one of these defects is
certain to raise doubts concerning its meaning.
When interpreted literally, it may import something
which does not accord with the sense of justice, and
whenever the ordinary sense of justice indicates one
thing and the written law another, the question at
once arises not only with laymen but with lawyers,
whether the law can really mean what it seems
plainly to declare, and the effort is made to extract
from the written language, by a species of violent
interpretation, a meaning accordant with the sense of

282 Law, Its Origin

justice. For instance, the Statute of Limitations,
as originally framed, declared, in substance, that
actions of a certain description could not be main-
tained unless brought within six years after the
cause of action had accrued. A base fraud has been
committed by a man, and by another fraud he has
succeeded in concealing it from his victim for more
than six years. An action at law is brought after
the expiration of this period, to recover damages
for the fraud, and the wrong-doer triumphantly
pleads the statute. Nothing can be clearer than
that by the language of the statute the action is
barred, and at the same time it is certain that the
legislator never intended such a result. The oppo-
site sides upon this question are confidently main-
tained by the counsel of the parties respectively,
one insisting upon the very words of the statute,
the other upon the intention of the legislator, and the
law is uncertain until it is determined by a judicial
decision. It may be thought strange that any one
should doubt, upon such clear language, that the
action was barred, but I remember that the very
question was made at the Law School in this Uni-
versity, while I was a student, in a moot court case,
and that the distinguished head of the school at that
time, who had no superior as a common law judge,
decided that the suit could be maintained, declaring
with some humour, ''Fraud is said to vitiate con-
tracts ; well it vitiates the applicability of the
Statute of Limitations!" And so it will ever be;
whenever the written law plainly contradicts the
precepts of justice so inwoven into our nature as to

Growth and Function 283

seem instinctive, a doubt will be made whether the
legislator really intended what he seems to have
declared, and all the arts of reason and sophistry
combined will be employed to put an interpretation
upon his language consistent with justice. The
Koran was a codification of Mahometan law, and if
codification could anywhere succeed it would be in
the stationary society of Islam; but the learned
doctors who administered that law found it pregnant
with the same uncertainties, and removed them
in much the same way. Says Gibbon:

"From the Atlantic to the Ganges the Koran is acknowledged
as the fundamental code, not only of theology, but of civil and
criminal jurisprudence ; and the laws which regulate the actions
and the property of mankind are guarded by the infallible
and immutable sanction of the will of God. This religious
servitude is attended with some practical disadvantage; the
illiterate legislator had been often misled by his own preju-
dices and those of his country; and the institutions of the
Arabian desert may be ill-adapted to the wealth and num-
bers of Ispahan and Constantinople. On these occasions
the Cadhi respectfully places on his head the holy volume
and substitutes a dexterous interpretation more apposite to
the principles of equity and the manners and policy of the
times." 1

The extent of the uncertainty thus necessarily
incident to statutory law is vastly greater than is
commonly supposed. The believers in codification
are deluded by the notion that there is by means of
language a capability, not only of making all things
known by any persons clearly intelligible to others,
but of making things clearly known which are in
their nature uncertain. But upon any just com-

» Gibbon, vol. vi, p. 283

384 Law, Its Origin

parison it will be found that the sum of the un-
certainties arising from statutory law is many times
greater in proportion to its extent than that met
with in the administration of unwritten law. Such
means of comparison as are open to us exhibit a
significant result. I have caused an examination to
be made of the comparative numbers of controversies
arising respectively on written and unwritten law
in a single year (1903), in three jurisdictions, namely
those of England, New York, and Massachusetts.
In England, out of four hundred and eighty adjudged
cases, two hundred and fifteen arose upon common
law and two hundred and sixty-five on statutes. In
New York, out of seventeen hundred and eighty-
eight decided cases, nine hundred and two arose
upon common law and eight hundred and eighty-
six upon written law. In Massachusetts, out of three
hundred and forty-three cases two hundred and
nineteen arose upon common law and one hundred
and twenty-four upon statutes. Now when we con-
sider that the field of conduct and consequent
numbers of transactions subject to the control of the
unwritten law are many times larger than those
governed by written law, if the same degree of
uncertainty obtained in each, there should be, ceteris
paribus, a number of litigations springing out of un-
certainty in the unwritten law many times greater
than the number arising upon statutory law. There
is not a day in which in the intercourse of active
men transactions sometimes very numerous are not
entered into which contain the possibilities of dispute
concerning the common law, while the transactions

Growth and Function 285

which turn upon the language of statutes are con-
fined to a comparatively few subjects and few persons,
and yet the actual amount of statutory litigation as
appears from the comparison I have given, does not
fall largely below that of common law litigation.

Whoever has followed with attention the line of
reasoning I have thus far pursued, will, at some
point, ask how it happens, if all attempts to subject
the main government of conduct to the operation of
written law be, as I have endeavoured to show, un-
scientific, inexpedient, and, indeed, in a certain sense
wholly impracticable, that some of the most culti-
vated nations of ancient and modern times have
persistently acted upon a contrary policy, and made
general codes covering every province of the law the
basis of their jurisprudence. This inquiry is indeed
most pertinent; for if it be true that such nations have
subjected the whole matter of private law to written
enactment and still maintained a judicial adminis-
tration which will stand without disadvantage in
comparison with our own, the foregoing reasonings
should receive further scrutiny, or at all events,
circumstances should be pointed out which might
explain this apparent incongruity between the
teachings of theory and experience.

The first observation to be made upon this possible
objection is, that it assumes what is not true. It
is not true that any nation, ancient or modern, has
successfully undertaken to subject the whole body
of private law to statutory forms; and it is true that,
so far as any such attempt has been made, it has, in
every instance, been attended by the confusion and

286 Law, Its Origin

mischief which have been pointed out as the inevit-
able consequences of such a policy. I must there-
fore take some pains to expose this error by a
reference to the actual experience of other nations.

Attention should be called, at the outset, to the
exceedingly loose reasoning which marks most of
the common arguments by which the expediency
of codification is sought to be supported by the
teachings of actual experience. The examples of
Rome, of France, of Prussia, or of Louisiana, are
frequently cited as proofs that codes of private law
should everywhere be adopted. Such arguments
can have no force unless coupled with proof of two
things: -first, that the judicial administration of
private law in the countries referred to has actually
been under the control of written codes; and second,
that such judicial administration is superior to our
own. But such proof is not even attempted. It
would be impossible to make it; the argument, how-
ever, tacitly and falsely assumes the fact.

The example first to be considered is that of
Rome. This is the one most frequently urged,
we will not say by the few learned, temperate, and
prudent advocates of codification, for there are such,
but by those who imagine that most of the diffi-
culties we meet in the administration of law come
from the circumstance that it is not expressed
in writing. They seem to have a notion that the
jurisprudence of Rome, until the time of Justinian,
was in a state of utter confusion and uncertainty,
and that by the composition of a code embracing all
departments of the law, that Emperor succeeded in

Growth and Function 287

bringing order out of chaos, and established a system
which, in its actual operation, secured to the people
over which it was extended the blessings, not thereto-
fore enjoyed, of a scientific, certain, and easy admin-
istration of justice. Mr. Field, himself, in his
defence of the policy of codification contained in the
introduction to his proposed Civil Code, makes, as
his first argument, an appeal to the example of Rome.
He says:

''It [the feasibility of a complete codification of the law]
was fully proven by what had been done in respect to the law
of other countries. The law of Rome in the time of Justinian
was, to say the least, as difficult of reduction into a Code as
is our own law at the present day. Yet it was thus reduced,
though, no doubt to the disgust and dismay of many a lawyer
of that period. The concurring judgment of thirteen cen-
turies since has, however, pronounced the Code of Justinian
one of the noblest benefactions to the human race, as it was
one of the greatest achievements of human genius. " *

These sounding phrases would excite a smile from
the civilians. The Code of Justinian is but a revision
and consolidation of the imperial constitutions,
which correspond with our statutes, and which, taken
together, constituted what may be called the
statutory law of the Empire, and which, for the most
part, related to the organism of the State, the forms
of its institutions, its officers and their duties, in other
words, covering the same matter which our statute
law covers, and which, as I have repeatedly said,
is the appropriate province of written law. Instead
of being one of the " highest achievements of human
genius,' ' it is a work certainly not superior to any one

1 Field, Introduction to Civil Code, p. xv.

288 Law, Its Origin

of a hundred similar ones which have been executed
from time to time in our own States and in other
nations, and instead of being properly described as
"one of the noblest benefactions to the human race, "
it is something which very few individuals of the
human race know or care, or need to know or care,
anything about.1

The eulogy often expended upon the Roman law
by its admirers, which Mr. Field has borrowed
and applied with somewhat ludicrous effect to the
Code, belongs to another part of the work of
Justinian, the Digest, or Pandects, which con-
sisted of a digest of the treatises of the most illus-
trious writers, selected from a preceding and purer
age of Roman jurisprudence. This work covered
the domain of private law, that which relates to the
rights and obligations of men in their ordinary deal-
ings with each other, and which I have so often
insisted upon as being the appropriate and peculiar
province of unwritten law. It was an attempt to
gather together, to consecrate, and by consecrating
to preserve those priceless contributions to juris-
prudence which the blended thought and experi-
ence— the unwritten law — of a thousand years had

1 " The Code contains the decrees of the Emperors, from Constantine
to Justinian and has the least reputation of Justinian's works. In re-
spect of Latinity, it is inferior to the Digest and Institutes ; as regards
style, it is bombastic and inflated. Its arrangement is not superior
to that of the Pandects, while in respect of esoteric merit it is con-
tradictory and sometimes even unintelligible. Professors fear to
attempt its explanation ; students shrink from it, while commentators
only use it to explain passages in the Digest."

Juridical Society Papers, vol. i., p. 487 by Patrick MacChombaich
(Colquhoun.)

Growth and Function 289

made, and which a declining age was no longer able
to enlarge and was beginning to forget. The design
was noble, although the execution was exceedingly
imperfect; but it would be the gravest of errors to
seize upon the glory which belongs to the authors
of this system of law and transfer it to Tribonian
and his colleagues who abridged it, or to their im-
perial master, who gave it his sanction.

In order to ascertain the true import of the lesson
taught by the history of Roman law and the work of
Justinian, we must consider with some precision
what the sources of that law were, its condition when
it engaged the attention of that Emperor, and his
dealings with it. A very hasty sketch is all that
my limits permit.

I have heretofore spoken of the law of the Twelve
Tables, which was the work of a Commission styled
the Decemviri, created about the year 450 B.C.,
designed to compose the dissensions between the
plebeian and the patrician classes. Of this law, in
its original form, fragments only remain; but it
seems probable that its framers extended their work
over a larger area than the points in dispute, and
attempted to reduce to written forms the main body
of the pre-existing law. The Twelve Tables, there-
fore, were, to some extent, in the nature of a general
code, which attempted to provide for future cases.
What must happen in every such case to the end of
time, happened here. In the practical work of
administering justice, the Twelve Tables were found
to be an obstacle; the rigid letter of the law was
constantly found not to be suited to the new and
19

290 Law, Its Origin

unforeseen cases, arising in endless succession. One
of two things was necessary; either that the letter of
the law should be departed from, or the right admin-
istration of justice be sacrificed. In such a contest
there can be but one result. It is the letter of the
law which must yield; and this was accomplished in
Rome, as in like cases it has been accomplished
everywhere else, by the arts of subtle exposition, and
the invention and employment of fictions, and other
devices by which the written law is apparently
obeyed, but really evaded.

One agency by which this result was accomplished
came through a peculiar incident of the action of the
judicial tribunals. The Roman praetors, whose office
most nearly resembled that of our judges, found
continual occasion to supplement or evade the rigid
and ill-adapted language of the Tables; and in order
that the public might know beforehand the extent
to which this discretionary power of the praetor
would be carried, it became the custom for each
of these magistrates before entering upon his judicial
functions to draw up and promulgate what was
styled an edict, in which the rules were laid down by
which he avowed that he would be guided in his
official action. This edict, however, not being
strictly law, was itself interpreted and applied with
as much latitude as it exhibited towards the rigid
code it was designed to supplement; and as the
praetor's term of office embraced a year only, the
successive praetorian edicts effected those gradual
and almost insensible changes in the administration
of private law which constitute what is very properly

Growth and Function 291

termed its development or growth. Each praetor
took the edict of his predecessor and adopted it so
far as it had stood the test of actual experience,
supplementing and amending it in those particulars in
which it had proved defective. The Roman praetor,
however, was not a master of the science which he
affected to expound. He was not, as with us,
selected from the class of experts in the law, wholly
by reason of his supposed prominence among his
fellows, and called upon to devote himself for suc-
cessive years to judicial duties. He was an aspiring
politician, passing through the various grades of
official dignity on his way to the consulship, and
discharging for a single year the duties of judicial
office. It was impossible that the great function of
administering justice in a civilised state could be
performed by the unassisted labours of these fleeting
officials. In the law, as in all other sciences or arts,
society demands the genius and skill of experts; and in
some form, direct or indirect, this demand must be
supplied; and this introduces me to the second and
principal agency by which the customary law in the
Roman State was at the same time cultivated, de-
veloped, and applied to the actual business of life.

This was the class of jurisconsults — private citizens,
whose highest ambition was satisfied by the employ-
ment of studying the science of jurisprudence and
bestowing the benefit of their labours upon the public
or their clients. To them the praetor resorted for aid
in the composition of his annual edict, the private
citizen for advice, and the principal officers of State,
and the Emperors themselves, for guidance in the

292 Law, Its Origin

discharge of legislative and executive duties. Never
in any society, ancient or modern, was the office of
the jurist more respectable, or more gloriously filled.
The classic age of the jurisprudence of Rome, co-
inciding with the period of her renown in arts and
arms, and extending from the birth of Cicero to the
reign of Alexander Severus, is full of illustrious
names, whose lives were devoted to the task of
developing the science of jurisprudence, and adapting
it to the evershifting phases of human affairs.1

The development and growth of Roman juris-
prudence, as thus sketched, continued until the reign
of the Emperor Hadrian; and during this long period,
the just boundary between the provinces of written
and unwritten law was preserved. The public
administration of the State was regulated by the
former, and the field of private rights and duties was

1 Gibbon has sketched in a few master strokes this peculiar feature
of Roman policy by which the unwritten law became supreme in the
administration of private justice. The shining paradox which closes
the citation, compresses into a line what might be expanded into pages :
"A more liberal art was cultivated, however, by the sages of Rome,
who, in a stricter sense, may be considered as the authors of the civil
law. The alteration of the idiom and manners of the Romans rendered
the style of the Twelve Tables less familiar to each rising generation,
and the doubtful passages were imperfectly explained by the study
of legal antiquarians. To define the ambiguities, to circumscribe
the latitude, to apply the principles, to extend the consequences, to
reconcile the real or apparent contradictions, was a much nobler and
more important task; and the province of legislation was silently in-
vaded by the expounders of ancient statutes. Their subtle interpre-
tations concurred with the equity of the praetor to reform the tyranny
of the darker ages; however strange or intricate the means, it was
the aim of artificial jurisprudence to restore the simple dictates of
nature and reason, and the skill of private citizens was usefully em-
ployed to undermine the public institutions of their country." Gib-
bon's Decline and Fall, (Murray, 1862) vol. v. p. 273.

Growth and Function 293

occupied by the latter. The Emperors had, indeed,
long been invested with absolute power, but it was
sparingly exercised in the province of private law,
the great mass of which still remained substantially
unwritten.

The Empire was now verging towards its fall.
Rome began to feel more and more the arbitrary
hand of her master. The decadence was marked
by a corresponding decline in jurisprudence, and
the extension of the province of legislation over the
proper domain of the unwritten law was one of the
principal features.1 Whether this extension of legis-
lative power over the domain of private law was the
cause, or the consequence, or simply an accompani-
ment of the decline in the juristic literature, we will
not undertake to pronounce; but upon either view
the fact is significant.

It was indeed, impossible for the noble juris-
prudence of Rome, which had its origin under the
free influences of the Republic, to preserve its
integrity amid the general decay of morals, arts,
letters, and arms which marked the decline of the
Empire, but two circumstances tended greatly to

1 " Hadrian appears to have been the first who assumed without dis-
guise the plentitude of absolute power. And this innovation, so
agreeable to his active mind, was countenanced by the patience of
the times and his long absence from the seat of government. The
same policy was embraced by succeeding monarchs, and, according
to the harsh metaphor of Tertullian, 'the gloomy and intricate forest
of ancient laws was cleared away by the axe of royal mandates and
constitutions. ' During four centuries from Hadrian to Justinian, the
public and private jurisprudence was moulded by the will of the
sovereign, and few institutions, either human or divine, were per-
mitted to stand on their former basis. " Milman's Gibbon, vol. iv.f p.
313-

294 Law, Its Origin

hasten the march of its degeneracy. In the first
place the changes in human affairs were continually
rendering much of the works of the classic jurists
obsolete, and requiring new adaptations and changes
of the law. In the next place, before the art of
printing was known, the cost of the materials of
writing was so great that the works of a past age
could not be perpetuated and multiplied at a price
which would enable any but the very rich to possess
them. They gradually disappeared and perished
under the decay of time, except so much of them
as were preserved in the treatises and commentaries
of succeeding jurists; and the genuineness of these
fragments was the subject of frequent, and sometimes
insoluble, dispute.1

Such was the condition in which Justinian found
the Roman law. It may be briefly summed up as
follows:

First. The statutory law was embodied in the
earlier collections known as the Gregorian, the
Hermogenian, and Theodosian Codes, and in the sub-
sequent Constitutions of the later Emperors, and
was encumbered with the superfluities and con-

1 The books of jurisprudence were interesting to few, and enter-
taining to none; their value was connected with present use, and they
sunk forever as soon as that use was superseded by the innovations
of fashion, superior merit, or public authority. In the age of peace
and learning, between Cicero and the last of the Antonines, many
losses had been already sustained, and some luminaries of the school
or forum were known only to the curious by tradition and report.
Three hundred and sixty years of disorder and decay had acceler-
ated the progress of oblivion ; and it may fairly be presumed that, of
the writings which Justinian is accused of neglecting, many were no
longer to be found in the libraries of the East." — Milman's Gibbon,
vol. v., p. 286.

Growth and Function 295

tradictions which necessarily result from successive
enactments relating to the same subjects through a
long period of time. It required a thorough revision.
Second: The unwritten law, the authoritative
sources of which for a thousand years had been the
writings of private jurisconsults, was in still greater
confusion. The works of the universally recognised
masters of the science had first become in part
superseded, and finally lost. Their successors were
an ignoble multitude "of Syrians, Greeks, and
Africans, who flocked to the Imperial court to study
Latin as a foreign tongue and jurisprudence as a
lucrative profession." There was a want of that in-
strumentality, indispensable in the administration
of unwritten law, namely, universally recognised
authorities to which appeal could be made.

LECTURE XII

WE are now in a situation to understand and
appreciate the nature of Justinian's work. It
embraced three principal features: (i) To reduce to
one compact and consolidated body the whole mass
of statutory law, and republish it, so that it should
completely supersede the former Codes and the sub-
sequent imperial Constitutions; (2) To make an
authorised digest of the whole mass of the juristic
literature, embracing, as it did, the entire province
of the unwritten private law of the Empire, the
praetorian edicts, and the writings of all subsequent
jurists; (3) The composition of a treatise or manual
for the instruction of students and magistrates in the
elementary principles of this legal system.

The first part of this scheme was carried out by
the execution and publication as law of what is
called "The Code," which is confined, for the most
part, to the proper province of written law, the law
relating to the public administration of the Empire,
and fills somewhat the same place in the Roman
law of this period as is occupied by the Revised
Statutes in the legal system of New York. We may
dismiss this from further notice as being a work
of comparatively little interest to succeeding ages,

296

Law : Origin, Growth, and Function 297

and throwing no light upon the main question with
which we are dealing.1

The third part of Justinian's work was accom-
plished by the composition of what is called "The
Institutes," and this also merits little attention
here. It was in no respect a Code of law, but a
manual for the instruction of students in a know-
ledge of the law.

It is the second part of this imperial scheme which
especially demands our attention; for it is this which
is really intended when the work of Justinian is
appealed to as supporting an argument in favour
of codification. It consisted in a digested abridg-
ment of all that was supposed to be true and of
present utility in the treatises of the Roman jurists.
Rejecting the feeble and degenerate productions of
the later lawyers, he went back to the time of the

1 " In general it may be said that the Codex consists, to a much greater
extent than the Digest, of public law in all its departments ; that is the
law which prescribes and regulates the organism of the State, with all
State institutions, whether civil or ecclesiastical. Here belongs all
that relates to forms of government, modes of administration, duties
of public officers, and the like. Under public law is included also
criminal law, the law of crime and punishment — a crime being a wrong
action viewed as affecting the rights, not of individuals, but of society,
as a violation of public peace and order, as an offence against the State.
On the other hand, private law is occupied with the rights of individuals,
with the modes by which individuals may acquire such rights or trans-
fer them to others, and the ways in which individuals may obtain
personal redress when these rights are impaired by fraud or violence.
Now, the fact which I wish to emphasise is this: that the Digest is
composed of private law in a far larger proportion than the Codex.
This is a fact which gives to the Digest something of the superior
interest and importance which belongs to it. It is mainly by reason
of the private law which it embodies that the Corpus Juris has exerted
its immense influence on jurisprudence and justice in Modern Europe."
— Hadley's Introduction to Roman Law, p. 14.

298 Law, Its Origin

perfecting of the Perpetual Edict by Salvius Julianas,
and selected some forty treatises composed within
the century succeeding that work. These were con-
densed, digested, and arranged in fifty books, and
the completed work was published and declared as
authoritative law.

But the important thing to be here observed is that
this work bore little resemblance to ordinary written
law, or to a Code, in the sense in which we are con-
sidering that term. It did not speak, as a statute
speaks, in the shape of simple rules or commands.
Composed from scientific treatises, it preserved
many of the features of a scientific treatise. It was
a statement of the principles of the science of the
law in the language of the authors whose works were
selected, accompanied with argument, explanation,
and illustration, and naming the jurists whose
language was adopted. The stamp of imperial recog-
nition added no new element to the authority of the
writers whose works were thus abridged. They
possessed the authority of law before. The effect
of the codification was simply to make the Digest
the only book in which these precepts could be
sought. The law in this form had, in large measure,
the attributes of unwritten law. It was still a law
of principles more than a law of words. It was
plastic, susceptible of such interpretation and appli-
cation as would suit the infinite variety of aspects
exhibited by human affairs.

It was, indeed, no part of the design of Justinian
to change in any respect the essential nature of
Roman jurisprudence as a system of unwritten law.

Growth and Function 299

The idea of a Code in the modern sense, as a legis-
lative republication of the whole system of law in
the imperative form of a statute, was not present
to the minds of Justinian and his advisers. That
idea is of modern origin altogether.1 His scheme
was in strict accordance with the historical develop-
ment of Roman law. It recognised the fact that
private, as distinguished from public law, was the
product of the learning and labours of the juris-
consults; that after a degeneracy of three centuries
the age no longer produced any of those great ex-
amples of original and independent genius which
had illumined the golden era of jurisprudence; and
that it was no longer possible to find among the living
oracles of the law any voices which commanded that
reverence and obedience which are at all times
absolutely essential to the administration of private
justice between man and man. He sought to correct
this evil: and his method was to gather together the
authentic remains of the earlier and better jurists,
to attach to them selections from later writers which
were necessary to accommodate them to the practical
needs of the present time, and to add to the whole
work his imperial declaration that it alone should be
appealed to as authoritative.

One would imagine on reading some of the high
sounding eulogies of the Justinian codification, such
as that of Mr. Field which I have quoted, that it was
the same sort of treatment of Roman law as that
which they advocate of our own law, and that it con-
ferred upon Roman society a vast and permanent

1 Austin's Jurisprudence (Campbell's Ed.), vol. ii., p. 920.

Law, Its Origin

benefit. Both these notions are erroneous. That
the first is so, is manifest from the sketch I have
given; and that the second is equally the case appears
from the fate which legal historians inform us the
work of Justinian met with. The whole scheme,
Code, Pandects, and Institutes proved, so far as
respected their practical efficiency for governing the
affairs of the Empire, an utter failure. Scarcely
had they been completed before necessities for
amendment revealed themselves. Change succeeded
change, and the whole system seems, in a compara-
tively short period, to have become either super-
seded or ignored.1 No support, therefore, can be

1 " But the Emperor was unable to fix his own inconstancy; and,
while he boasted of renewing the exchange of Diomede, of transmuting
b>rass into gold, he discovered the necessity of purifying his gold from
the mixture of baser alloy. Six years had not elapsed from the publi-
cation of the Code before he condemned the imperfect attempt by a
new and more accurate edition of the same work, which he enriched
with two hundred of his own laws, and fifty decisions of the darkest
and most intricate points of jurisprudence. Every year, or, according
to Procopius, each day, of his long reign was marked by some legal
innovation." — Gibbon's Decline and Fall, vol. v., p. 287.

" The great law-book of Justinian seems to have gained no very wide
currency among those for whom it was intended, It was, to a great
extent, superseded in practice by paraphrases and abridgments of the
whole or of particular parts. An inquirer two or three centuries later,
looking at the fate of this Justinian legislation, might have said that
it was a splendid and elaborate failure. In the reign of Leo the Isaur-
ian (717-741) the books of the Corpus Juris were hardly used at all in
their original form; and even the paraphrases and abridgments
founded on it were so ill-adapted to the existing state of the law, that
this Emperor thought it necessary to issue a compendious Code of his
own. This was the state of things in the Eastern Empire. In Western
Europe the Corpus Juris had never found currency, except in Italy;
and here in some parts and cities of the peninsula it still enjoyed an
obscure and precarious influence." — Hadley's Introduction to Roman
Law, p. 24.

Growth and Function 30 r

drawn from this experience in favour of any con-
version of our unwritten law into statutory forms.
The true greatness and glory of the Roman law does
not proceed in any degree from codification. It has
become attached to that word by accident. The
great classical jurists who reduced that law to
scientific form had passed away before the time of
Justinian, and afterwards their names and their
works were alike overwhelmed in the avalanche of
barbarism which swept over Europe. The discovery
of the Pandects coinciding with the general awaken-
ing from the ignorance of the Dark Ages revealed to
the rising modern world the treasures it contained,
and the merit of these has thus come to be connected
with the imperfect instrument which preserved them,
but the real merit of the Pandects belongs not to
the compilers of that very imperfect work, but to the
original authors of perhaps the most consistent sys-
tem of unwritten law which the world has yet seen.
The principal modern states whose example may
be appealed to by the advocates of codification
are France and Prussia. Indeed, it may be said that
a code, in the modern sense of that word, was for
the first time adopted in Prussia. The measure was
initiated in 1751 by Frederick the Great. It was at
first styled the Gesetzbuch, but was afterwards de-
veloped into what is now called the Landrecht.
Concerning this code two observations are to be
made: (i) It had its origin in one of those political
emergencies which, as I have heretofore explained,
justify and require a resort to statutory law. A
number of originally independent states had become

302 Law, Its Origin

consolidated into a political unity and subjected to
the dominion of the House of Brandenburg. Each
state had its own customs and consequently its own
laws, and the great increase of intercourse between
the citizens of the different states was attended with
mischievous confusion and conflict which would
eventually pass away by the prevalence of some
common customs over the conflicting ones. In such
cases the approach to unification may be greatly
assisted and hastened by making the customs tending
to prevail, compulsory. This can be done with great
advantage by statutory law. Such law will be
attended with difficulties in the enforcement of it,
but the confusion and difficulty will be less than those
which it supersedes. (2) The merits of this work,
other than those of hastening a desirable consolida-
tion of discordant social elements are to be estimated
by its actual results; and upon this point there can
scarcely be a question. It became loaded with de-
claratory laws passed to explain its obscurities,
correct its errors, and supply its deficiencies, ^f

The example of France is frequently appealed to,
and by Mr. Field himself, as a proof of the success
and utility of a general reduction of private unwritten
law to statutory forms. But none of the strictly
scientific supporters of codification have ventured to
employ so unfortunate an illustration. As in the
case of Frederick, the leading motive with the Em-
peror Napoleon was political and dynastic. France
was composed of states originally independent of
each other, and still maintaining their several and
discordant legal systems. It was a sound dictate

Growth and Function 3°3

of public policy as well as the ambition of the Em-
peror to consolidate these different elements into
one harmonious state. But looking to what the
Code Napoleon may have accomplished in the way
of establishing a system of law certain, easy to be
learned, and easy to be administered, it must be pro-
nounced a failure. In neither of these respects will
it bear comparison with the system of our common
law. Upon this point the testimony, not of an
enemy, but of a distinguished supporter of the theory
of codification may be invoked:

"It is well known, for instance, that the set of French Codes,
which in time became the most comprehensive and self-
dependent of all, have been completely overridden by the
interpretations of successive and voluminous commentators,
as well as by the constantly accruing decisions of the Court
of Cassation. In France, as was intimated before, in treating
of another subject, there can be no reliance, in any given case,
as to whether a judge will defer to the authority of his prede-
cessors, or will rather recognise the current weight attached
to an eminent commentator, or will extemporise an entirely
novel ^view of the law. The greatest possible uncertainty
and vacillation that have ever been charged against English
law are little more than insignificant aberrations when com-
pared with what a French advocate has to prepare himself
for when called upon to advise a client." 1

And John Austin may be called as a witness still
more distinguished, who, although a thorough be-
liever in the feasibility and expediency of codifica-
tion, confesses his inability to find anywhere in
human experience a successful example of it. He says :

"In France the Code is buried under a heap of subsequent
i An English Code, Sheldon Amos, M.A., &c., &c., p. 125.

304 Law, Its Origin

enactments, and of judiciary law subsequently introduced
by the tribunals. In Prussia the mass of new laws and
authoritative interpretations which have been introduced
subsequently to the promulgation of the Code is many times
the size of the Code itself." l

A brief reference must be made to the example of
Louisiana where, as is well known, a Code professing
to embrace the principal subjects of private law has
been for many years in force. The following ob-
servations are to be made concerning this piece of
codification:

1. There was a political necessity for an extension
of the province of legislation over the field of private
law, arising from the circumstance that Spanish,
French, and American law in many cases competed
with each other for supremacy.

2. The code actually adopted was substantially
borrowed from the Code Napoleon, and is, so far,
subject to the same criticism as has been visited upon
that work by the advocates of codification.

3. The defects so strikingly characteristic of
French jurisprudence would have been repeated here,
but for the practical good sense which has been
exhibited by the Bench and Bar of that state.
Largely imbued with the principles and methods of
the English Common Law, they have looked to that
body of jurisprudence, so far as the code permitted
them, as containing the real sources of the law, and
have fully adopted its maxim of stare decisis.
Nothing is more observable than the extent to which
the English and American reports and text books

1 Lectures on Jurisprudence, Campbell's Ed., vol. ii., p. 125.

Growth and Function 305

are cited as authoritative in that state. It would
seem that the courts, except when there is some
provision of the code directly in point, and except
in those cases where the Civil Law, which lies at the
basis of the legal system of Louisiana, notoriously
differs from the Common Law, seek the rule in any
given case in the same quarters from which it is
sought by us, and then inquire, if occasion arises,
whether there is anything in the code inconsistent
with the rule thus found.

4. But a most impressive testimony against the
expediency of codification is found in the deliberate
criticism upon this code pronounced by one of the most
distinguished of the judges who have administered
its provisions. It contains definitions of the principal
technical terms which it employs; and it must be
admitted that no code can otherwise well be con-
structed. Full, complete, and accurate definitions
are insisted upon by the scientific advocates of
codification as the first requirement for such work.
Austin declares that the paucity of such definitions
is the most glaring deficiency in the French Code.
Now the very existence of these definitions in the
Louisiana Code was found to be one of the greatest
difficulties in administering it. Says Mr. Justice
Yost in giving the opinion of the Court in Egerton
vs. The Third Municipality of New Orleans i1 " Defini-
tions are at best unsafe guides in the administration
of justice, and their frequent recurrence in the
Louisiana Code is the greatest defect in that body
of laws."

20 ' i La. Ann. 437.

306 Law, Its Origin

The extent to which this difficulty is lost sight of
by the advocates of codification is indeed marvellous.
It would seem as if the ordinary experience of every
lawyer would be enough to convince him of the
hopelessness of any attempt to contrive definitions
of terms which would answer the unknown exigencies
of the future. How can that be defined the bound-
aries of which are not known and cannot even be
imagined? It must turn out that the new phases and
aspects of human affairs as they arise will continually
prove contrary to all expectation, and will be found,
on the one hand, to have been caught up and carried
by an ill advised definition into a class to which they
do not belong, or that no definition has been framed
to suit them and they are thus left wholly unprovided
for. The great jurists of Rome, unquestionably the
most complete masters in the accurate use of lan-
guage, after a thousand years of effort, gave up the
task in that maxim of despair, Omnis definitio in
jure civili penculosa1; yet it is still argued that
the whole system of private law can be successfully
embodied in written language, although accurate
and infallible definition is an essential requisite at
every step of the process!

Of the so-called codes recently compiled for the
British possessions in India, I need only say:

i. That the utter confusion existing in those
countries in respect even to native law, without
mentioning the competition between that and British
law, rendered a resort to statutory enactments a
necessity ;

i Dig. 50. 17. 202.

Growth and Function 307

2. Mr. Sheldon Amos, already referred to, in his
plea in behalf of an English Code, deprecates any
resort to the example of the Indian Codes for light
in relation to the problem of codifying the laws of
civilised nations: J

California adopted some years since, substantially
the same Civil Code as that which has been so often
pressed for adoption upon the Legislature of New
York. So far as the experiment affords any instruc-
tion, it is of the same character as that derived from
the other examples already commented upon, and
justifies the following observations :

1. Even less than in the State of Louisiana do
either the bench or bar look to it for the true sources
of the law. These are still sought for the most part,
as elsewhere in communities inheriting the traditions
and methods of the common law, in the reported
decisions of that and other States, and in authori-
tative text-books; and the code seems to be brought
into consideration only, or chiefly, when a question
arises whether its provisions have changed the law.

2. The volume of litigation, so far as may be
inferred from the number of reported controversies,
has certainly not been diminished. There is no
evidence whatever that it has had any sensible
effect in lessening the magnitude of libraries re-
quisite for obtaining an adequate knowledge of
the law, or diminishing the labour of professional
study. In short, no one practical advantage can be
pointed out as having been gained by this experi-
ment in legislation.

1 An English Code, pp. 36 et seq.

308 Law, Its Origin

3. But the mischiefs which are inseparable from
the scheme have already manifested themselves in
notable ways. The Legislature has been unceasingly
assailed with projects for amendment. Some of
these have been well-founded, and others, doubtless,
without merit. It is a misfortune to live under
erroneous law. It is scarcely worse to live under
laws liable to annual change. The worst result,
however has attracted the attention of the learned
Professor Pomeroy, so well known to our profession
by his numerous treatises. The courts are obliged,
where it is found that the code has changed the pre-
existing law, to follow the code, although against
their will. The departures may be so slight at first
as not to prompt a resort to the Legislature for
amendment; but they tend gradually to become
wider and deeper and this result has proceeded so
far in California as to threaten a wide divergence
from the law as settled in other states. Professor
Pomeroy became alarmed at these symptoms and
called public attention to them in a series of articles
published in a leading law journal. He suggested a
remedy which, in my opinion, is likely to be adopted
sooner or later wherever a codified law is admin-
istered. We all know that when the courts of
common law in the infancy of legislation came to be
called upon to interpret statutes, they soon displayed
their wisdom by hitting upon the now familiar rule
that statutes in derogation of the common law are
to be strictly construed. The effect of this was to
establish the doctrine that if any particular case did
not clearlv fall within the statute, the common law

Growth and Function 3°9

was still in existence as to such case, and the doubt
would be thus disposed of. When at a later period
statutory revisions came up for interpretation, a
similar course was adopted by the rule that it was
to be presumed that the revisers did not intend to
change the pre-existing law, but simply to re-enact
it in a more suitable form, unless it appeared from
the revision that there was a positive intent to make
a change. These rules Professor Pomeroy advised
should be adopted by the concurrent action of all
the courts in the interpretation of the California Code.
Such advice would have made Bentham turn in his
grave, but who of his disciples could object? Austin
has distinctly declared that the sole purpose of
codification was to reduce to writing what was now
known of law, and that while the novel and unknown
cases of the future could not be governed by the
code, the unwritten law could not govern them
because, ex hypothesi, all that was in the code. The
consequence he admitted to be that there was no
law in existence for such cases, but he insisted that the
same thing was true both of a code and the common
law; that in either case the decision must be left to
the arbitrium of the judge. * I have already quoted
Mr. Field's assertion to the same effect, and I may
add that if he did not think that there was no exist-
ing law for the decision of future novel cases, he in-
tended to make it so, for he introduced into his
proposed code a clause to the effect that the rule
that statutes in derogation of the common law
should have no application to the code! Now if it be

Austin, Lecture XXXIX, §§ 951, 952.

310 Law, Its Origin

true, as these distinguished codifiers assert, that all
that is intended by codification is to reduce to
writing only such parts of the law as are known, what
objection can there be to a statement of that truth
in the code itself?

They would say, probably, that this would do
neither good nor harm, that it would not create law
where none existed. If to this the answer were
made that the judges would not think so, and that
if the code itself were made to declare that it in-
tended only to reduce the law to writing so far as
known precedents made it possible, they would
experience no difficulty in finding a law by which
to decide any future case on the facts being presented,
even if it was up to that time unknown. 'Yes,"
they would say, "but their decision would proceed,
not from law, but from their mere arbitrium; they
would make the law by which they gave judgment."
As I have fallen into the form of dialogue, I must
pursue it a little further.

Ques. Do you mean to say that the judge in such
a case follows no rule, but he decides according to his
mere pleasure and under no responsibility, for if you
do, you mean that he might freely govern his deci-
sion by tossing a coin and not be held accountable
therefor.

Ans. Oh, we do not mean that. The Judge is un-
doubtedly bound to make his decision according to
all those considerations of human experience, sound
sense, custom, right reason, conscience, equity, and
justice which lawyers apply to such cases.

Ques. Then there are certain things which exist

Growth and Function 311

in the absence of all law and these things you indicate
by the words human experience, sound sense, right
reason, conscience, equity, and justice ; now are these
existing things really different things, or one thing
expressed by the union of all these different words?

Ans. You are pushing us into rather more exact
definitions of words than is usual.

Ques. Do you mean that you cannot define more
precisely the language you employ?

Ans. No, we do not mean that exactly ; the terms
we have employed may be said to indicate the
various sources of law.

Ques. The judge then finds in those sources of law
a rule by which he may decide the case, and when he
finds it he is bound to apply it. Is that what you
mean, and is this process the exercise by the judge
of what you call his arbitrium?

Ans. That is quite true.

Ques. Now, when any future similar case comes be-
fore the judge is he not bound to apply the same rule ?

Ans. Certainly he is.

Ques. And why?

Ans. For the reason that the rule has now become,
by his decision, the law.

Ques. Was anything added to or taken from the
rule by the judge when he applied it in the decision
of the case, or was he under any greater or other
obligation to apply it in the decision of the second
case,than in that of the first?

Ans. We admit that there was nothing added to
or taken from the rule and that the obligation of the
judge was the same.

312 Law, Its Origin

Ques. Have you not then, gentlemen, admitted
that there is always in existence a rule by which
every controversy as it arises must be decided, and
is this not entirely contrary to your theory that there
is no law for the decision of future unknown cases,
and that the judge makes the law for them by an
exercise of pure arbitrium?

Ans. We prefer to leave that question to be
answered by others.

It will be perceived that this short dialogue really
brings out the principal conclusion which it has been
my object in these lectures to establish. It would
manifestly, be impossible to distinguish and assign
to reason, sound sense, experience, conscience, etc.,
the several shares which they take in the process of
finding the rule of decision. One thing only is done,
— called by whatever name, — and that is to consider
the consequences of conduct with the view of finding
what conduct is on the whole, most productive of the
equal happiness of all in society, and inasmuch as the
first lesson which man in society learned was that
the greater degree of social happiness was produced
by a conformity to custom, the real process becomes
an inquiry as to what is the custom. When this is
found, it is declared and enforced, and it is there-
fore the rule for the regulation of conduct which is
enforced by society, and this is the precise definition
of law. The one fundamental truth at the bottom
of all and which more than anything else is to be
continually kept in mind is that human conduct
regulates itself by enforcing custom; and therefore
that law, being nothing but enforced custom, is self-

Growth and Function 3*3

existent, and cannot be made by legislation however
legislation may by the subordinate and subsidiary
action I have heretofore described aid and improve it.
But even the advantages which Austin thinks are
possible under a system of codified law can, in his
own opinion, be secured only when the task is ex-
ecuted by the most competent and skilful hands ;
and he confesses himself unable to point to an
example among all the efforts in that direction which
have as yet been made. I have quoted his condemn-
ing the Prussian and French Codes. The only other
example of an attempt at General Codification is
that of Mr. Field which has been adopted in some of
our States. I have called attention to the grave
censure of this by the learned Prof. Pomeroy and to
this I may add the more thorough condemnation of
Mr. Amos. He says:

" The New York Civil Code may be described rather as a Cod-
ification of Text books on the English Common Law, than as a
Codification of English Common Law itself. Apart from
occasional scraps of terminology and arrangement borrowed
from Justinian's Institutes, and the Code Napoleon, the
whole Work reproduces, in an utterly undigested form, the
notions and the very phraseology in which the English Law
is clothed in the most hastily compiled Text books. There
is scarcely a symptom of a single ambiguous Term having
been submitted to the crucible of logical criticism, or of a
complex notion having been reduced to its component ele-
ments with a view to its being introduced afresh, under a
simpler guise, into the body of the new Code.1 "

The same writer, after pointing out many fatal

1 An English Code, p. 99.

3M Law, Its Origin

defects in this attempt at codification, thus concludes
his review:

" The above faults and shortcomings in the New York Code
have been pointed out simply in order to guard the English
public and the Legal Profession against the temptation to
construct, under a sudden impulse, a worthless Code. The
Code here criticised may not be worthless for New York,
though such an one would be far worse than no Code at all
for this country. The peculiar state of society in a new and
undeveloped country makes the kind of demand very differ-
ent there from what it is here. Accessibility and verbal sim-
plicity in the law may be of far greater importance to a rest-
lessly energetic and commercial community, than precision
and accuracy of expression. In England, on the contrary—
with its antiquated institutions, so fondly cherished by the
mass of the community; with its constitutional system so
repulsive of change, and so jealously as well as tenderly
watched; with its conservative sentiment which is strong
in politics, and all but omnipotent at the Bar; a Code
which in every line of it violates a familiar principle, or in-
troduces a novel terminology, and yet is consistent in doing
neither, would never hold up its head for so much as the first
hour's debate upon its acceptance in the House of Commons.1 "

And yet this was the work of one of the ablest lawyers
constructed after long study aided by the widest
experience.

And finally, Austin himself while insisting that a
code is the true pathway to an improved condition of
the law, admits that the question whether it would
be wise to endeavour to frame and adopt a code
for any particular nation is open to doubt. He says:

" But taking the question in concrete, or with a view to the
expediency of codification in this or that community, a doubt
may arise. For here we must contrast the existing law —
1 Ibid., p. 107.

Growth and Function 3T5

not with the beau ideal of possible codes — but with that par-
ticular code which an attempt to codify would then and
there engender. And that particular and practical question,
as Herr von Savigny has rightly judged, will turn mainly
on the answer that must be given to another: namely, Are
there men, then and there, competent to the difficult task of
successful codification, of producing a code, which, on the
whole, would more than compensate the evil that must neces-
sarily attend the change? 1 "

Well may the advocates of codification shrink
from a task which sheer presumption only would
assume when the nature of it is fully understood;
for, disguise it as they may, the task is to frame
rules which the unknown conduct of the future will
follow and obey. This necessarily supposes that
the legislator can compel the members of society to
act with uniformity in obedience to his dictates, in
other words, that there is or can be a human sov-
ereign able to do, as Austin and Maine say, "exactly
as he pleases." The attempt, whenever made, will
prove as futile and miserable as the effort of the
scenic artist to mimic the thunder of Jove.

Demens qui nimbos et non imitabile fulmen
. simularet.

I dismiss the topic of codification with the con-
viction that so far as it is a scheme for the
conversion of the unwritten into written law because
of a supposed superiority of the latter, it is entirely
inconsistent with the fundamental principles of law.
The peculiar condition which has sometimes obtained
and may hereafter obtain, where different political
societies with different original customs are struggling

' Ibid., Lecture XXXIX, §. 968.

Law, Its Origin

for unity may justify a limited reduction of con-
flicting usages by a codifying statute. But when
any such attempt is made the true nature of law
will re-assert itself. A judiciary law will grow up
around the code and will eventually replace the
written enactment and the law actually administered
will be that which conforms to the customs of men.

Naturam expelles furca, tamen usque recurret.
Even under these political conditions, however,
general codification is not necessary. Time will,
itself, under the ordinary operation of social ten-
dencies, bring about the desired uniformity. The
consolidation of different states under one nationality
produces a greatly increased intercourse between
populations once foreign to each other, and a con-
sequent tendency towards the assimilation of cus-
toms. In the progress of time, the differences will
foy slow steps disappear through the triumph of one
custom over another. The English nation affords
an example of this process. Its original elements
were drawn from both Anglo-Saxon, Danish, and
Norman sources, and multitudes of different and in-
consistent customs and laws were consequently to be
found in the same nation; but through the instru-
mentality of greatly increased intercourse between
the different elements and the consequent tendency
to the adoption of the same customs, and by the
steady and constant influence of the King's Court in
favour of general uniformity, nearly all these original
differences have passed away with the aid of but little
in the way of legislation. Some of the customs,
however, were so deeply seated in large local prov-

Growth and Function 317

inces that none of these influences tending to uni-
formity were powerful enough to change them, and
they still remain and are enforced as local customs.
Of these the custom of gavelkind in Kent is perhaps
the most conspicuous.

The conditions in France were different. There
the separate provinces united under the kingdom
were much larger and had been under the dominion
of different established governments. The differing
customs were established in territories sharply
separated from each other by recognised boundaries,
and the process of natural reduction to uniformity
was thus rendered difficult, slow, and indeed almost
impossible. Many successive efforts in the way of
legislation had been made to abrogate the differences.
I have heretofore alluded to the more important of
these. The Revolution with its ideas of universal
freedom and equality was a prodigious impulse
towards uniformity, and presented an opportunity
which the bold genius of Napoleon was quick to
embrace, and thereby to establish the renown of a
lawgiver. The Code Napoleon is an avowed attempt
to reduce the law, whatever local differences may be
exhibited, to a uniform system of written rules; but
in one important particular it did not conform to the
doctrine of Bentham, nor to some of the examples
framed by his followers, especially that of Mr. Field.
Bentham would not allow an appeal to any authority
save the written rule. He would compel a decision
under some precept of the code, however inapplicable
it might be, or if this could not be, he would have a
case undecided and anarchy rather than judge-made

Law, Its Origin

law. Mr. Field would allow the existence and bind-
ing force of the common law in a case not provided
for by the code, of course leaving the question
whether it was provided for or not as a theme of
contention fruitful in uncertainty. The French codi-
fiers were wiser. They did not act upon the arrogant
notion, that they could foreknow the future, and say
what groupings of fact would arise, and how they
should be disposed of; and they recognised the fact
that if cases should arise as to which the code was
silent, there was an existing law by which they
should be governed. The Fourth Section of the
Preliminary Chapter declared "A judge who refuses
to render judgment under pretence that the law is
silent, obscure or insufficient, may be prosecuted as
being guilty of denying justice."

If the view I have supported be correct that Law
is self -created and self -existent and can neither be
made nor abrogated however it may be, in some
degree, incidentally shaped, enlarged, and modified
by legislation, we should expect a vast body of gloss
and comment under the name of interpretation,
gathered and gathering around the Code Napoleon,
and indicating the methods by which the resistless
force of conduct under the guidance of custom is
reconciled with the code, and represented perhaps as
being in pursuance of its commands. The clause I
have just quoted enables this course to be taken
without judicial embarrassment, but it would have
been taken all the same if the clause had not been
adopted. The fact is strikingly in accordance with
this expectation. It would be a bold assertion to

Growth and Function

declare that the volume of literature devoted to the
law in France has in any measure diminished in con-
sequence of the code, and if the learned author I
have heretofore quoted is a candid expert the main
source of uncertainty in legal administration in
France is that often much vaunted enactment.

It is thus that written law always is and always
must be treated. Our own Federal Constitution is
an admirable specimen of written law. Its framers,
well knowing the folly of attempts to foresee the
future, confined themselves to large general enact-
ments under which any of the policies which experi-
ence in the actual course of human events should
advise might be adopted. If it had been pointed out
to them that under the instrument they had framed
with a jealous care to limit the central power, banks
could be chartered, railroads constructed, seceding
States reduced to subjection by war, the privileges
of the mail service denied to lotteries in which many
of the States themselves participated, and the
President of the United States exercise authority to
permanently rule over populations of millions in-
habiting territories in distant seas, it would have
commanded the assent of but a feeble minority; but
had they lived to the present time all or most of
these successive extensions of Federal powrer might
have been acquiesced in by them as authorised by
their own language.

LECTURE XIII

THE doctrine which so closely identifies Law with
custom suggests some important questions bear-
ing upon the subjects both of legal and of social pro-
gress and improvement. Law, Custom, Conduct, Life
— different names for almost the same thing — true
names for different aspects of the same thing — are
so inseparably blended together that one cannot
even be thought of without the other. No improve-
ment can be effected in one without improving the
other, and no retrogression can take place in one
without a corresponding decline in the other. Law
we have found to be based upon and to be dependent
upon Custom, and therefore we cannot materially
change Law without changing Custom, and to
change Custom, is, as we have found, a thing beyond
our power, that is beyond our direct and immediate
power. Society cannot, at will, change its customs,
indeed it cannot will to change them. This seems,
at first blush, to hold out but feeble encouragement
to efforts for social improvement, and yet we know
that improvement does take place and we cannot
help thinking that the numerous forms of activity
having improvement for their object do bring it about
or aid in bringing it about. The things which it is
important for us to know are how far this improve-

320

Law: Origin, Growth, and Function 321

ment depends upon causes beyond our control, and
to what extent and in what way our conscious efforts
may aid it.

Under the great process of Evolution, man began
to advance — to go no further back — from his savage
condition to higher physical, moral, and intellectual
levels; and this was not by virtue of his own conscious
effort, but because of the nature of his original
constitution and the environment in which he was
placed. The progress thus begun has been carried
forward by designed effort, and it is that effort, and
the rules which should govern it, which most deserve
our attention.

The first great fact to be kept in mind is that man
will pursue what he conceives to be his own happi-
ness; the next, that his only means of knowing what
will bring that happiness is the observation of the
consequences of his conduct. In this pursuit the
first great motives to which he will give indulgence,
are the gratification of his natural appetites, and out
of this grow the parental relation, the maintenance
and care of children and the institution of the family.

Hail, wedded Love!- mysterious law, true source

Of human offspring, sole propriety

In Paradise of all things common else.

By thee adulterous Lust was driven from men

Among the bestial herds to range; by thee

Founded in reason, loyal, just and pure,

Relations sweet, and all the charities

Of father, son, and brother first were known.1

The writer of a recent interesting and very valuable

1 Milton's Paradise Lost, Book IV.

322 Law, Its Origin

work, the benefit of which I have enjoyed during the
preparation of the later of these lectures, makes the
entire progress of man to consist in the development
thus suggested, the development of what he calls
"the Moral Instinct" beginning with the parental
relation.1 He shows in great detail how the in-
creasing care of offspring leads to self-sacrifice for
others, develops by degrees the kindly and generous
feelings, how it extends from the immediate family
to a whole kindred, thence successively to a com-
munity and a nation and ultimately to the whole
human race, manifesting itself in the cultivation of
the higher individual qualities and in the improve-
ment of society with all its intellectual appliances
and charities. I think this account of human
progress in the main true, although sufficient im-
portance may not be assigned by it to the purely in-
tellectual element in our nature, the effect of that
being more implied by the writer than expressed.
It is the mind in man which conceives that the greater
happiness which he finds in contributing to the
happiness of others is caused by that contribution
and which expects a still further increase from an
extension of the contribution. It is the mind, or
reason, which forms an abstract notion of the quality
resident in many different things of creating happi-
ness and which it calls goodness, and which it presents
to the will as the means of obtaining its desire, and
this intellectual power is my more particular concern.
The law may have defects peculiarly its own, and
these will be found in the administrative agencies by

* The Origin and Growth of the Moral Sentiment, by John Sutherland.

Growth and Function 323

which the unwritten rule is ascertained and enforced,
or in errors of legislation. The judicial tribunals
may err in declaring what the true custom of society
is, or the legislature may make an unwise attempt
to create law not in harmony with custom. The
remedy for such evils lies in improving the character
of the courts by a better selection of judges and
better training of lawyers, and in a repeal of the
unwise enactments, and a selection of wiser and
better legislators.

But if the judicial tribunals correctly declare and
enforce custom all remaining social evils are evils
in the customs and any improvement must be sought
for in a reformation of custom itself, and custom
being conduct it can be reformed or improved only by
a reformation or improvement of conduct. Conduct,
however, being caused by thought, can be changed
and improved only by a change or improvement in
thought. Here we come back to the conclusion
reached in an earlier lecture that all substantial
social reform must begin with individuals and by a
change and improvement in their thoughts. The
legislature cannot originate it, however it may aid it,
and the sole function of the judicial power is to
preserve the peace of society and leave its members
to work out their own happiness and that of their
fellows by a free exercise of their own powers. Men
cannot be made better by a legal command. This
conclusion is not a new one. How often have we
been told from the pulpit and by moralists that
reform must begin in individual life; but how often
is the lesson forgotten in the multitude of legislative

324 Law, Its Origin

enactments passed upon the notion that they will
in some manner execute themselves, and change
conduct without changing thought! and where a
reluctant compliance is compelled by a rigorous
enforcement of an unacceptable enactment, we are
apt to take the energy of prosecution as an evidence
of the triumph of law and of real progress, whereas
it will be quite as likely to breed more than counter-
balancing mischiefs and drive us back again to the
acknowledgment that no real advance is possible
except through the slow, gradual, unconscious, but
willing change of thoughts, and consequent changes
of conduct and custom. Quid legis sine moribus ?

Accepting then the conclusion that progress and
improvement must in the main begin and continue
in the individual life, let us consider a little more
closely the method they must follow. Man seeking, as
by his nature he must, his own happiness, first thinks
to find it in the unrestrained gratification of his
original appetites and tendencies; but this leads him
into conflict with his fellows, and brings upon him
the miseries and suffering always attendant upon
self-indulgence. He finds no way of avoiding these
consequences except by self-restraint, and he soon
begins to learn that by postponing immediate in-
dulgence and enjoyment he can gain a larger and
wider, though more distant, good. These lessons,
taught him by his observation of the consequences of
his conduct, unite with his affectionate tendencies
which find their activity in the formation of the
domestic relations. He not only observes the con-
sequences of his own conduct, but the consequences

Growth and Function 325

of the conduct of others and seeks by imitation to
gain the happiness which others enjoy. Under this
natural process, physical well-being and moral pro-
gress advance pari passu and the whole company of
human virtues spring into action and propagate their
influences in ever widening circles. This advance-
ment is greatly stimulated by that co-operation
which is attendant upon the increased peacefulness
of society and the division of labour and effort.
Men co-operate not only to increase wealth, but to
enlarge social, intellectual, and moral well-being.
Society takes on a more refined organisation, the in-
stitutions of government and law are more and more
perfected, and a multitude of agencies and facilities
for increasing happiness and diminishing misery are
created by united efforts.

Ethical writers conceive the main question in
morals to be, What is right, or What is right conduct ?
I do not mean to disparage the importance of this
inquiry, but I would suggest that the progress I have
indicated has begun and been carried forward to a
high point, without an answer to this question,
indeed, without asking it. The simple process has
been to observe the consequences of conduct and to
adopt such action as has seemed to be productive of
happiness: and we may rest in confidence that those
lines of conduct which conduce to what men in gen-
eral feel to be happiness cannot be otherwise than in
accordance with the profoundest conclusion con-
cerning the ultimate highest Good. The light that
has steadily guided us over the long pathway from
primeval savagery into civilised society may be

326 Law, Its Origin

safely trusted during the continuance of our journey.
A crowning influence in the improvement of con-
duct comes from the further intellectual develop-
ment. Though we may not be able to comprehend
the cosmical plan and its ultimate aim to which all
else is subservient, we may be able — we are able—
to conceive of something better than we see. We
may imagine a possible world fairer than the actual
one. As we observe happiness to flow from different
lines of conduct and from many different actions,
we abstract from them the common quality which
is the cause of the beneficent effects and give it a
name. We thus form the abstract conceptions of
kindness, gentleness, truth, charity, beauty, justice,
liberty, and come to cherish these qualities for the
happiness they conduce to bring and even to love
them for their own sake. We form ideals of conduct,
as the painter or the sculptor forms ideals of the
beautiful in art, and these ideals are something fairer
and better than we observe in actual life.

"Where, where are the forms the sculptor's soul hath seized?
In him alone; can nature show so fair? "

These ideals furnish the stimulus which leads to
higher forms of conduct. They have their home in
thought, the fountain and guide of action. They are
first developed with the more cultivated and en-
lightened, who are looked up to and imitated, and
their influence flows down through all ranks of society
and manners and morals rise in response. They
become the themes of literature and the inspiration
of art. They create the qualities we admire in the

Growth and Function 327

hero, the patriot, and the philanthropist. They
are offended by everything low and mean, and grati-
fied by the display of every virtue.

How is the improvement thus produced in conduct
reflected or reproduced in the law ? That it must be
so reproduced is certain for it by degrees becomes
customary and custom is law. But the principal
agencies are manifest. The first and most import-
ant is that of the judicial tribunals. The judges
are both by appointment and tradition the experts
in ascertaining and declaring the customs of life.
As the higher forms of conduct become customary
they pervade all social and business life. Con-
formity with them is mutually expected by the
parties to all transactions, and if disputes arise it is
because this expectation has been disappointed, and
it is the office of the judge to declare and enforce the
fair expectation. But the expert is also an exemplar
and teacher. The judges are the most enlightened of
all. The study of justice leads to the love of justice,
and thus they are the first to recognise and sanction
the improving customs of life. Here is the process
by which the unwritten private law recognises the
advance in morals and manners and affixes upon
advancing forms of custom the authenticating stamp
of public approval. There is no head or topic in the
law in which this process is not observable. Take,
for instance, the law of sale. An early rule imposed
upon the buyer the risk of loss arising from any
failure of the thing bought to conform to his expecta-
tion. An improved sense of fairness led honest men
to disclose defects known to them but not apparent

328 Law, Its Origin

to ordinary observation. This disclosure became so
far customary that purchasers relied upon it and the
courts recognised the custom and made compliance
with it obligatory. Manufactured articles are bought
and sold by a certain description and if they conform
to that description the obligation of the seller is
complied with; but where the product of a manu-
facturer is bought under the same description there
has come to be an expectation that the product will
possess certain qualities, and the custom has arisen
for manufacturers to take care that the process of
manufacture shall secure such qualities. This cus-
tom has been recognised by the courts and made
obligatory, so that the manufacturer may be com-
pelled to answer in damages in case of defects in the
product caused by the want of the customary care.
In similar ways the law of contracts has been ex-
panded so as to be made to conform to the fair ex-
pectations attendant upon business transactions
among the most honourable men. The jurisdiction
which courts of equity exercise is marked by a like
development in the obligations of truth and honesty
which are enforced. The duties originally imposed
upon actual and recognised trustees are extended
to cases in which any trust or confidence has come
to exist in whatever way, and also to cases in which
one person has acquired a power over the property
or pecuniary interests of another which he may exer-
cise to his own advantage, and the detriment of such
other, and fictions are indulged in, implications and
presumptions made, in order to enforce under ordinary
legal forms rights and obligations which spring out

Growth and Function 329

of new customs. In short, it is the function of the
judges to watchfully observe the developing moral
thought, and catch the indications of improvement
in customary conduct, and enlarge and refine cor-
respondingly the legal rules. In this way, step by
step, the great fabrics of common law and equity law
have been built up without the aid of legislation
and the process is still going on. l

1 I borrow here the well chosen language of a very able and very
temperate writer, who felt that this consideration called for a sur-
render of the advantages which at one time he believed codification
might furnish. I refer to the late J. A. Dixon, a distinguished lawyer
of Glasgow: " This slow and gradual evolution or spontaneous
growth from judicial decision, and the slow operation of custom in de-
termining organic changes in all the departments of the law, explains
how it is that there is a continuous process of refinement going on in the
Common Law of a country in all ages. As institutions undergo a silent
modification ; as morality progresses ; as new needs and new modes of
satisfying needs come to the surface, and as the countervailing facts
of new modes of fraud, oppression, and of crime also present themselves,
a demand for suitable laws or modifications applicable to the ever new
circumstances makes itself felt on every side, and is instinctively
responded to by judges, at once the sharers and regulators of public
sentiment. The change in laws so brought about is so exceedingly
minute from day to day, that it will only be noticed by comparing
classes of decisions made at tolerably long intervals of time, on the
same states of fact, and when no positive legislation has intervened.
Take a volume of Morison's Dictionary and look through it from this
point of view and you cannot fail to be struck with the evidences of this
slow but incessant process of organic change. You see whole sections
of law silently transformed, you see new regions arising and others
disappearing, not by violent revolutions, but by the astonishing
operation of some slowly- working causes, whose existence becomes
visible, and whose effects are to be measured only by generations
or centuries — like the stupendous geological changes — that con-
tinuous formation and destruction of strata — the submersion of
ancient continents — the upheaval of new — not by cataclysms and
earthquakes, but as the result of forces which are in active operation
around us day by day, and which produce so little disturbance that
their very existence is unperceived till we contemplate their vast
results over epochs and aeons of time.

330 Law, Its Origin

The scientific character of this process should be
noted. The truths that man seeks his own substan-
tial happiness, that he is taught what conduct to
pursue by observing the consequences of previous
conduct, and that what he has once observed to
happen he expects will happen again under like
circumstances are original and inherent in his consti-
tution and are acted upon long before he reaches the
abstract conception of them, and consciously em-
ploys them. The progress he makes, therefore, by
unconscious action upon these truths is in a just

" What has been the great factor in the creation of the Mercantile
Law? Not legislative intervention: our Mercantile Law has been
the product almost entirely of custom and judicial decision, and in the
various stages of its history it has moulded and adjusted itself with
the most remarkable sensitiveness to the progress of commerce and
civilisation. The progress in this particular department of law is
perhaps nowhere better observed than in such a book as Mr. Lang-
dell's collection of Cases on Contracts from the earliest period of Eng-
lish Law down to the present day. Another great region or tract of
law which has undergone in a very remarkable manner this process
of silent and imperceptible change, is the whole region of doctrines
pertaining to Trusts and Fraud — the prominent matters of equity
jurisdiction in England. The whole doctrines of equity, both as
avowedly administered in the equity courts, and as they have in a less
obtrusive way crept into and pervaded the decisions of the Courts
of Common Law, all these doctrines have involved themselves into the
state of high moral refinement in which they at present exist, not
so much by the special moral elevation of particular judges, as by
the concurrent onward impetus of the whole community, which all the
judges have shared and felt the influence of. The history of the
analogous Praetorian jurisdiction, and of the Praetorian doctrines in
Roman law, is another instance — particularly in questions of bona
•fides, culpa, dolus, fidei commissa, of the same process by which the
unwritten law of a country absorbs into itself the whole gradual re-
finement and elevation of advancing civilisation : — how, with the general
advance in moral sensitiveness on the part of the community, there
comes a demand in matters of contract and ownership, and legal
duty, for fine and still finer shades of faithfulness, for absolute purity
of intention, for the repression of all indirectness of aim and duplicity

Growth and Function 331

sense scientific, although not consciously so. The
great general rule governing human action at the
beginning, namely that it must conform to fair
expectation is still the scientific rule. All the forms
of conduct complying with this rule are consistent
with each other and become the recognised customs.
All those inconsistent with it are stigmatised as bad
practices. The body of custom therefore, tends
from the beginning to become a harmonious system.
When the ascertainment and administration of cus-
tom are committed in enlightened society to learned

of purpose, for what has been called a superior refinement of moral
scrutiny into the duties which the law will enforce, the negligences
which it will punish, the frauds which it will defeat. The Praetorian
Jurisprudence and the Equity Law of England developed themselves
under widely different auspices, and I think the growth of both sys-
tems in gradual niceness and delicacy of perception of the subtlest
shades of legal and moral distinctions, is a proof that an unfettered,
unwritten law grows with a nation's growth, and refines itself with
the national refinement. The writings of the Roman lawyers and the
history of English Equity jurisdiction alike exhibit the exquisite ac-
curacy and balanced moderation with which, in the hands of com-
petent lawyers, an unwritten law succeeds in doing, by the slow process
of adjustment and refinement of which I have been speaking, what
no legislative effort ever could accomplish — I mean the work of reducing
into scientific form, of fixing, circumscribing, limiting, getting into
practical shape as instruments of justice, the apparently indefinite
and indefinable principles of morality — of seizing, appropriating, and
applying, day by day, and year by year, the insensible increment and
product of the deepening moral sense and conscience of the nation.
This is what Savigny means when he says, in his remarkable Treatise
on the Vocation of our Age for Legislation, that the largest portion
of the unwritten Law of every nation is the exact product and measure
of the national character and temper — a reflex of its life and progress.
This also explains the immense importance, even in the case of a
codified law, of not overlooking the difference between a process of
codification that has gone on, as that of France, simultaneously, as
it were, with the development of the law, and a Code to be framed
at one stroke, and made absolute and final, such as ours might be. — "
— Journal of Jurisprudence, 1874, p. 312 et seq.

332 Law, Its Origin

judges, who are men of science, improvement becomes
more rapid and certain, but the process is the same.
The means employed by the judge to determine the
character of any piece of social conduct, as being legal
or illegal, is, wherever there is no fit and acknow-
ledged precedent to guide, to do precisely the same
thing which primeval man did: observe the con-
sequences of the conduct in question and approve or
condemn it according as it appears to be or not to
be in accordance with fair expectation. Nothing is
more common than the practice of learned judges
to say in rejecting some rule urged as being the law,
that business could not be conducted as it actually
is conducted if that were the rule. This is saying
that the suggested rule does not conform to the fair
expectation. Learned judges recognise the fact that
all legal rules under whatever head of the law they
belong must be consistent with each other, and this
can be only when they are in accordance with fair
expectation. Here is one of the chief methods of
correcting and improving the law. Some particular
act the legality of which is challenged may have
occurred in many different transactions and thus
have been considered under many different heads in
the law, and have been sometimes regarded as
innocent, sometimes as immaterial, and sometimes
condemned. The judge compares the various group-
ings of fact in which the act is found and learns when
it is permissible and when otherwise, and by this
refining process numerous different rules are framed,
,all forming parts of a harmonious scientific system.
I am not aware that learned judges have ever

Growth and Function 333

explicitly avowed that their determinations as to the
legal character of novel forms of conduct were gov-
erned by the consideration of what was in accordance
with fair expectation, but I think there can be no
doubt that such is the fact, indeed, how is it possible
to determine the character of conduct except by a
regard to its consequences and if these consequences
are such as fair-minded men in general would expect,
the conduct must be approved, and if otherwise, must
be condemned.

This identity between the scientific rule upon
which legal tribunals act in determining the law with
the one which the unlearned man naturally employs
in determining upon his own conduct is the element,
characteristic of the unwritten law, which creates in
us the feeling that it is just and right. We are so
incessantly asking and deciding every day, or rather
every hour, what conduct is expected of us that we
complete the process instantaneously, and decision
seems like an immediate recognition of a truth,
rather than what it really is, an inference. It is this
which moved the classic jurists of Rome to declare
the law to be self -existent, and identical with the
right reason of Supreme Jove.

The other chief agency in the reform and improve-
ment of the law is legislation. As has been shown,
society cannot make law at will, the great causes
which create law being self -operative; but it can aid
in the process and give completed form to changes
which are pressing for recognition. Its office is a
supplementary one to that of the judges, designed
to accomplish a work for which the judicial power

334 Law, Its Origin

is unfitted. The characteristic of custom is uni-
formity, and it is instinctive in the judge to pro-
nounce the law the same to-day as yesterday. He
hesitates ever to say that a change has taken place,
even when one has in fact taken place. The great
changes in custom relating to the treatment of
married women received, and could only receive, a
tardy recognition from the courts; but the legis-
lative power, absolute in form, however limited in
fact, can easily and with effect enact a change already
existing or coming into existence in custom. Pro-
perty was from the first recognised in all valuable
things which were limited in quantity and susceptible
of appropriation; but this limitation led to a definition
which excluded the immaterial products of the in-
tellect: but the principal reason which lay at the
foundation of the custom of acknowledging private
property in anything was that society cannot have
a supply of those things which are the product of
human labour or abstention without conferring upon
the producer the rights of property in the fruits of
this labour, and this equally applied to the products,
if we may call them so, of the mind. The courts
could not well change their definitions; but the
legislature could easily and with effect extend to
these fruits of intellectual industry the rights of
property by enacting a patent law. The same pro-
gress has led to the bestowal upon authors of the right
of property in literary works, through copyright
legislation, and a further extension of the same
privilege by one country to the citizens of an-
other, by appropriate treaties — a form of inter-

Growth and Function 335

national legislation — is likely to come in the near
future.

Nowhere is the advance in morals and intelligence
more manifest than in the criminal law. The harsh
treatment of untried prisoners, the denial of counsel
for prisoners upon trial, the practical taking of
accusation as evidence of guilt have given way to
just and even indulgent methods which never permit
the punishment of the innocent. A great part of
this improvement has been effected or made possible
by means of legislation.

But the largest field for the employment of the
conscious agency of society in the improvement of
the law is to be found in the multiplied forms of legis-
lation which a highly developed industrial life
demands. When we consider the enormous mass
of apparently necessary legislation found in modern
societies, we are almost led to doubt the soundness
of the maxim that the best government is that which
governs least, as well as the soundness of the teaching
that the sole function of government and of law is to
secure to every man the largest possible freedom
of individual action consistent with the preservation
of the like liberty for every other man; but while
these maxims are permanently and everywhere true,
the actual amount of government control varies
according to social conditions. In rural communities
with their sparse populations engaged almost entirely
in agricultural pursuits comparatively little legis-
lative interference with the conduct of life is needed.
A simple organisation of the civil power under
officers such as sheriffs and constables, a suitable

336 Law, Its Origin

provision of judicial tribunals for the determination
of civil disputes and the punishment of crime, simple
provisions for the maintenance of roads and bridges,
schools, poor-houses, and jails are all that is neces-
sary. But the division of employments attendant
upon advancing civilisation and the consequent
increase of co-operation, and crowded populations
in cities, towns, and villages, present very different
conditions. Men touch each other in a vastly greater
number of ways and may consequently the more
encroach upon and abridge the individual liberty of
each other. These encroachments if left to the
natural mode of redress, would involve continual
strife. Moreover such populations have many com-
mon additional needs to which all must contribute.
Streets, pavements, sewers, light, police must be
provided for and these require many laws and regu-
lations. Banking, insurance, and other methods of
business co-operation are demanded; but these would,
through the fraud or neglect of those entrusted with
the management, be perverted to the injury of the ig-
norant or unskilful, unless a system of government
supervision were maintained. Additional and more
complex legislation is therefore demanded as society
advances, but the principles which should guide that
legislation and determine its amount remain the
same. Where is the line to be drawn beyond which
compulsory laws should not be permitted to pass?
What are the maxims which should reconcile liberty
and restraint? There is no clearly perceivable line
which enables us in every case to clearly determine
how far society may go in limiting and directing

Growth and Function 337

individual conduct. It changes with the changing
conditions of life. But there is a guide which, when
kept clearly and constantly in view, sufficiently in-
forms us what we should aim to do by legislation
and what should be left to other agencies. This is
what I have so often insisted upon as the sole function
both of law and legislation, namely, to secure to
each individual the utmost liberty which he can
enjoy consistently with the preservation of the like
liberty to all others. Liberty, the first of blessings,
the aspiration of every human soul, is the supreme
object. Every abridgment of it demands an excuse,
and the only good excuse is the necessity of preserv-
ing it. Whatever tends to preserve this is right,
all else is wrong. To leave each man to work out in
freedom his own happiness or misery, to stand or fall
by the consequences of his own conduct, is the true
method of human discipline. For myself I reject
that view of the cosmical scheme which would regard
society as the unit for the well-being of which our
efforts should be immediately directed, even though
individual happiness and perfection wrere thereby
sacrificed. The society most perfect, as a whole,
will be that alone which is composed of the most
perfect and happy individuals.

Here then is the field of effort for the improvement
at once of law and society. It is a strictly scientific
field. It is the field in which the great laws of moral-
ity have their play and in which they are to be
studied as those other laws of nature which are
supreme in the physical world. Writers on law have
frequently felt obliged to point out what they deemed

22

338 Law, Its Origin

to be an error in the common expression the laws
of nature, and to say that it was only by a not very
appropriate metaphor that the great principles which
govern the phenomena of the physical world should
be called by the same name which is used to describe
the rules of conduct; but the resemblances are more
striking than the differences. In each case the
phenomena obey original self -existing and unchange-
able rules alike entitled to the designation of laws.

All are but parts of one stupendous whole,
Whose body Nature is, and God the soul.

There is a Science of Human Conduct which em-
braces the kindred sciences of law and legislation.
To study the science of the unwritten law, to develop
and apply its great principles is the work of every
lawyer who aims to perfectly qualify himself for both
the private and public duties which belong to his
vocation, and it is no less his work to study the
science of legislation and learn the ways in which
man by conscious effort can furnish aid to the
silently operating forces which are working for the
good of mankind.

These views have a significant bearing upon the
subject of Legal Education upon which I can bestow
only a passing glance. They at once approve as
correct the method of teaching now long established
in the Law School of this University. The law being
the science of conduct of men in their relations and
dealings with each other, the facts of that conduct,
that is, human transactions of every description are
the arena of fact which that science embraces. The

Growth and Function 339

multitude of cases which have been adjudicated and
reported are but the records of conduct, and the
diligent study of them and of the numberless similar-
ities and differences which they exhibit will disclose
the landmarks which reason has followed in its
search for the true rules. These volumes, however,
are but a part of the great territory of fact which it
is the business of the lawyer and jurist to explore.
Life itself is a moving spectacle of numberless forms
of conduct the study of which is necessary to the full
equipment of the lawyer or the judge. They are
the accredited and traditional experts in the great
game of social life, and must carefully watch that
game. Herein we find the reason why lawyers of
sound practical sense and knowledge of affairs so
often acquit themselves both at the Bar and on the
Bench better than others who may be much more
accomplished in the learning of books. They have
been studying diligently and to good purpose the
facts of human conduct as they are displayed in the
great book of life. The actual methods and systems
of trade, commerce, and finance embrace great
realms of fact in which legal principles lie implicit
and disclose themselves to careful investigation.
All the actions of men — quidquid agunt homines —
are the proper theme of the lawyer's study. And
then too there is the internal world, the realm of
consciousness, equally necessary to be studied and
equally fruitful in results, for it is here that the secret
springs, the real causes of all conduct are discerned.
I do not disparage the learning of books. We find
in them not only a great storehouse of the facts of

340 Law, Its Origin

human conduct, but the thoughts and workings of
the great minds which in the past have made those
facts a study. We learn the rules and principles
which have governed human conduct through ages
of the past, and are made the more certain that they
will continue to guide it in the future. Nor is the
study of literature other than that of the law to be
neglected. In History we find the record of the
great events which concern nations, the conflicts,
not between individuals, but those larger ones which
no pleadings can contain and no court adjudicate,
but which are still examples of conduct full of in-
struction for the jurist, the legislator, and the states-
man. Poetry also has the highest uses. It is here
that we find our loftiest ideals of conduct. The
Roman Horace says to a friend that he had been
reading over again at his leisure in Prasneste the
poems of Homer, who taught him the lessons of moral
wisdom — quid sit rectum, quid turpe, quid utile,
quid non, better than those renowned philosophers,
Chrysippus and Grantor.

There is another subject upon which the legal
theories I have sought to maintain have an important
bearing, that of politics. I have had occasion to
point out that the functions of law and government
are closely allied to each other. Law is indeed, one
of the departments of government, that one which
reveals, or frames the rules which the executive arm,
the arm of power, is to enforce. What then is the
best form of government ? With us it is almost held
to be treason to ask the question; but let us not be
too confident. A wise and witty poet tells us with

Growth and Function 341

truth, "Whate'er is best administered is best."
What that government is, be it an absolute mon-
archy, an aristocracy, a plutocracy, an oligarchy, or
a democracy, which secures to the citizen the largest
measure of individual liberty of action, the right to
freely work out his own destiny, at no peril save
that arising from the natural consequences of his own
conduct, is the best, for that particular society. The
first necessary condition of any society is peace, and
this must be secured at all hazards. If it can be had
only under the rule of a despot at the head of armed
men, that government is the best, for it is the only
possible one; but it is a tyranny. It is the reign
not of Order, but of Force. The domination of an
oligarchy may be no better, for it is still a tyranny,
but that may be the best for the particular society.
But be it ever remembered that whoever has power
over his fellow-men will use it in part at least for his
own purposes, and the misery he thus brings upon
those beneath him is the ordered penalty inflicted
upon those who fail to prove themselves worthy of
liberty. Nor does the oligarch wholly fail to render
a public service. The feudal baron asserted posses-
sion over all the land, compelled his serfs and
retainers to cultivate the soil, took from them the
whole product of their labour save enough to support
life, and compelled them to shed their blood in his pri-
vate quarrels; but he defended them against all other
injury and secured for them no inconsiderable amount
of peace and happiness. And what would have been
the result, had he anticipated the justice and charity
of Howard, and measured out to every toiler the

342 Law, Its Origin

full product of his industry? It would have been,
there is much reason to think, expended in riot and
debauchery with nothing left to support life for
the making of another harvest. Many complain-
none more than I — of schemes, such as protective
tariffs, bounties, and subsidies, by which a government
confers favours upon classes of persons which it
cannot confer upon all alike and by which the greater
part of the burdens of taxation are shifted to the
shoulders less able to bear them; but I should be
staggered for an answer if I were asked whether, on
the whole, the result were not, at least in an economic
sense, to place the surplus income of society in the
hands of the best custodians — whether, if it were all
divided with strict regard to supposed justice among
those who contributed to produce it, it would not,
to a prodigious degree, be wasted, and misspent, to
the injury not only of society, as a whole, but to a
vast number of the individuals among whom the
distribution was made. When the workman has
learned to exercise that self-restraint which will enable
him to make a good use of the entire product of his
labour, he will have acquired at the same time the
intelligence and the courage which will enable him
to win it. Perhaps he does not sooner deserve it.
Absolute equality among men, however necessary we
may deem it in our political systems, and however
properly we may cherish it, is not regarded in the
order of nature as the supreme good.

These reflections teach us that government is not
an independent instrumentality, based upon original
conceptions of right and justice for making men

Growth and Function 343

virtuous, prosperous, and happy, and equally appli-
cable to all conditions of society. It is not primarily
a cause, but an effect. It is that form of public
authority which naturally comes into existence
because it is the only form which will secure peace
and something like order among the people over
which it extends. There is, therefore, no form of
government which is best for all political societies.
Each one has its own merits. I have said that gov-
ernment was not primarily the cause of the advance-
ment of society in virtue and well-being, but I am
far from thinking that it has no effect in this direc-
tion. We have heretofore seen how social progress
is the result of action and re-action, among many
influences and that government which best preserves
internal peace and order indirectly aids in promoting
all those social utilities which are the fruits of peace
and order.

We cannot, therefore, answer the question what
form of government is best without knowing the
society over which it is to be established; but as the
function of Government is the same as that of Law—
to mark out the line within which each individual
can freely act without encroaching upon the like
freedom in others, we can say that the best govern-
ment is that which best performs this sole function.
The best societies, that is, those composed of the best
individuals, will, of necessity, have a government
which for that reason, we call best, and therefore,
the best and truest ideal government is that of the
best society. This ideal is best represented by a
representative Democracy, for in that is found the

344 Law, Its Origin

largest measure of individual liberty, and this, after
peace is secured, is the first of human blessings.

The views I have presented have also an important
bearing upon the question how far, in a democracy,
the powers of government should rest with the central
authority and how far they should be dispersed
among the extremities. The cardinal test is the
same. Which policy will secure the best perform-
ance of the function of Law and Government, that
is, to maintain, first, peace, and next, individual
liberty? Where the localities are able to perform
the duties of local government the power should
be lodged with them, and no occasional or partial
failures constitute a sufficient warrant for taking it
away; but there may be a local population so inca-
pable as to be absolutely unable to perform the
office of self-government, in which case the power
should be withheld.

I have now completed the inquiries which were
my object in composing these lectures, and stated
some of the important consequences which seem to
me to flow from the conclusions I have endeavoured
to establish. I am almost painfully conscious how
imperfect the treatment has been, but I shall
be more than satisfied if I have succeeded in im-
parting clearer and more just conceptions than have
heretofore been held of the true nature of Law
and of Legislation, and of the respective provinces
of each. I hope, at least, that I have done something
to convince my hearers, that while Legislation is a
command of the Sovereign, the unwritten Law is not
a command at all; that it is not the dictate of Force

Growth and Function 345

but an emanation from Order; that it is that form
of conduct which social action necessarily exhibits,
something which men can neither enact nor repeal,
and which advances and becomes perfect pari passu
with the advance and improvement of society.
Every human action has unvarying consequences,
which will be repeated, ceteris paribus, whenever the
action is repeated. To study these consequences
and to follow the teaching they impart is the great
duty of life. To arrange those acts which are social
in their nature in their true order, and under their
proper classes is the work of the complementary
sciences of Ethics and the Law.

Index

Abrogation of private law does
not occur after conquest of
country, 85 /.
Alaric orders a compilement of

the Theodosian Code, 93 /.
Alderson, B., on negligence, 76
Alemanni, code of the, 93 ; law of

the, 96

Alfred, the laws of, 45, 61, 99
American law in Louisiana, 304
Ames, P., on justice, 162
Amos, S., on the Code Napoleon,
303; on the code of New York,
313 /.; on the codes of India,
307

Anglo-Saxons, customs of the, 97
Anti-Trust Act, the, 209 ff.
Apuleian enactments, the, 232
Arbitration, among early Ger-
mans, 53; the origin of, 47 /.
Aryan communities, the early,

described by Maine, 198 /.
Assize, of Clarendon (1166), the,
63, 1 06; of Novel Disseisin, the,

63

Athens, early legislation in, 33 ff.

Austin, J., cited, 299; on codes,
313; of France and Prussia,
303 /.; definition of law by,
agrees with canon law, 1 03 ;
of positive law by, 7 /.; on the
expediency of codification, 314
/.; on the lack of definitions
in the French code, 305; on
the purpose of codification,
309; theory of law by, 181 /.,
218, 268; of sovereignty by, 14,
iQ3 ff>, 31$

B

Banking department, the creation
of a, is not law, 234

Barbaric man, the social condi-
tions of, 1 6 ff.

Battle, judicial trial by, the
origin of, 47

Bentham, J., on the authority of
codes, 317 f.; on the common
law, 266 ff.; definition of law
by, 7 ; on the ethics of govern-
ment, 222 ff.; theory of juris-
prudence by, 235, 265 ff.; of law
by, 180 /., 217 /.

Blackstone, W., definition of law
by, 8; on the digest of laws
made by Alfred, 99; on the
dominance of custom in gov-
erning conduct, 32; on early
laws in England, 60 /.; on the
functions of judges, 78 /.; on
the law of nature, n, 174

Brehons, the, referees in disputes,
51 ff.; the laws of the, 52 /.

Brooke, J., on compensation for
murder among the Dyaks, 44;
on custom among the Dyaks, 2 1

Browne, T., on the nature of God,

Burgundians, code of the, 93
C

Caesar describes the Druids, 5 1

California, the code of, 307 ff.

Canon law, the, 101 ff.

Capitularies issued by Charle-
magne and others, 109

Carlisle, the statute of (1309), 107

Carlyle, T., on Bentham's ethics
of government, 222

Chancellor, the assumption of
judicial functions by the, 64

Charlemagne issues Capitularies,
109

Charter, of the Forest (1217), the,

105; the Great, see Klagna

Chart a.

347

348

Index

Cherry, R. R., on payments for
crime among early peoples, 45

Cicero, calls law "right reason,"
74; definitions of law by, 4 /.;
on the law of nature, 10, 174;
on the unwritten law, 231 f.

Civil, codes, 117 f.; law, the, in
Louisiana, 305

Clarendon, the Assize of (1166),
63, 1 06; the Constitutions of
(1164), 105 f.

Classes, conflicts of, 260 ff.

Code, of the Alemanni, the, 93;
of the Burgundians, the, 93 ; of
California, the, 307 ff.; the
Gregorian, 294; the Hermo-
genian, 294; of Justinian, the,
103, 286 -ff., 296 /.; of Louisiana,
the, 304 f.; Napoleon, the, 257,
317 f.; borrowed by the code of
Louisiana, 304 ; embodies or don-
nances of Louis XIV. and
XV., 1 12; the, in France, 302 ff.;
of New York, the, 313 /.; of
the Ostrogoths, the, 93; of
Prussia, the, 301 f.; Austin on
the, 304; of the Salian Franks,
the, 92; the Theodosian, 93 f.,
294; of the Visigoths, the, 93

Codes, of barbarians gradually
sank into desuetude, 94 ; of bar-
barian conquerors of Western
Europe, 88 ff.; civil, 117 /.;
in India, 306 ff.

Codification, 263 ff.; Austin, on
the expediency of, 3 14^; on the
purpose of, 309^ justifiable
where there is/ conflict of cus-
toms, 315 fftfof law, 204\^f

Coke, E., on the wisdom of the
law, 128

Common law, Bentham on the,
266 ff.; resorted to, in Cal-
ifornia, 307; in Louisiana, 304 /.

Common Pleas, the Court of, the
origin of , 63

Concealment in insurance law,
7o ff.

Conduct, the causes of, 118 f.,
122 ff.; controlled by custom,
138 iff.; division of the field of,
1 68 f.; the improvement of,
323 ff.; law, rules for the reg-
ulation of, 14 f.; the nature of,
167 ff.; in pastoral state, 21 /.;
the regulation of, in early

democracies, 27 ff.; in early
monarchies, 24 /.; in primitive
society, 15 /.; restraints upon,
in barbaric society, 18 ff.; same
as law, custom, life, 320 /.; the
science of, 338

Conflicts between the codes of the
barbarians and the Roman law
of the provinces, 93

Conscience, conflict of, with cus-
tom, 141; defined, 151 f.; the
governor of conduct, 165 /.

Constitution, of an American
State, 116; the Federal, of U. S.,

3I9

Constitutions, of Clarendon, the
(1164), 105 /.; of the later
Emperors, 294

Contracts, the beginnings of, 30 f.;
Langdell on, 330; the law of,
328 /.

Controversies, in California, 307;
on written and unwritten law
in England, New York, and
Massachusetts, 284

Copyright, the law of, 334 f.

Corpus Juris, Canonici, 103;
Civilis, 103

Coulanges, F. de, on the legis-
lators among the ancients, 49

Court, baron, the, 57 ; of the coun-
ty, the, 57; of the hundred,
the, 54, 57 ; the influence of the
King's, in favour of uniform-
ity, 316

Courts, in England in early times,
57 f.; of England and U. S., the,
66 ff.; of justice, the establish-
ment of, 157 /.; the origin of,
48; the origin of, in Western
Europe, 50 f.

Coutumes in early France, 109 /.

Crime, definition of, 241 ff.; pay-
ments for, in early times, 42 ff .

Criminal law, the, 241 ff.; denned
by Hadley, 297 ; development of
the, 335

Curtius, E., on Athens in time of
Solon, 34

Custom, the authority of, in early
democracies, 2 7 f ' ; in early mon-
archies, 24 f.; in early tribes,
40; the change of, 257 ff.; con-
flicts of, with legislation, 204
ff.; conflicts of, in time of
Solon, 34 f.; the enforcement of

Index

349

compliance with, among the
Australians, 19; the establish-
ment of, 19 /.; furnishes rules
governing conduct, 118 ft.;
law in courts in England in
early times, 59 /.; the nature of,
122 ff.; necessity of obeying,
233; not necessarily law, 120;
particular, 80 /.; among pas-
toral people, 22; a restraint
upon conduct in barbaric so-
ciety, 1 8 ff,; same as law, con-
duct, life, 320 /.; a source of
law, 1 20 ff.; supreme in de-
termining conduct, 158 ff.;
universally known, 77 f.; the
violation of, wrong conduct,
241 if.

D

Danish law in England, 61
Decisions of judges, the, 310 ff.
Decretals, the, in canon law, 103
Decretum, the, in canon law, 103
Deeds as title to land, 75
Definitions, in codes are dan-
gerous, 306; necessary in codes,

3°5
Democracies, the beginnings of,

26 ff.
Demosthenes, definition of law

by, 6 /.
Dernburg, H., definition of law

by, 8
Despotism of the Sikhs in the

Punjab, the, 196 ff.
Digest of Justinian, the, 288 /.,

297 ff., 306
Digests, 118
Disputes, the causes of, among

early tribes, 40 /.; the settle-

ment of, among early tribes,

4i ff.
Dixon, J. A., on the evolution of

the common law, 329 ff.
Donis conditionalibus, the enact-

ment de, 107
Draco, the code of, 33
Druids, excommunication by the,

52; the judges in all disputes,

Edgar begins digest of laws, 61
Edict, the perpetual, by Salvius i
Julianus, 298

Edicts, the, of the Roman prae-
tors, 290 /.

Education, legal, 338 ff.

Edward, the Confessor, digest of
laws by, 61 /.; I., the legislation
of, 1 06 /.

Emptores, the statute Quia, 107

Enforcement of law, the, 79 /.

England, conflict of customs in,
316 /.; controversies on written
and unwritten law in, 284; the
differences of customs in, made
uniform by legislation, 256;
the history, of judicial tribunals
m» 55 if-> of legislation in, 98
ff., 104 ff.; the impossibility of
making code for, 314

English common law resorted to
in Louisiana, 304 /.

Engrossing, the practise of, 205

Equity law, development of the,

33° /•

Ethics, 137 ff.; of government,
the, Bentham's theory of,
222 ff.

Euric orders the national cus-
toms of the Visigoths to be re-
duced to writing, 94

Evidence, the law of, 65

Evolution of man, the, 321

Exchequer, the origin of the
Court of the, 63

Excommunication by the Druids,
52 /.

Extravagantes, the, in canon law,
103

Family, the unit of society in
early times, 29 /.

Feudalism in England, 56 /.

Field, D. D., on the authority of
codes, 317 /.; cited, 302, 309;
on the code of Justinian, 287;
proposes a system of codifica-
tion, 264, 270 ff., 313

Force is to become supreme over
Order, 200 ff.

Forest, Charter of the (1217), 105

Forestalling, the practice of, 205

Fortescue, J., cited, 79

France, codes in, 302 ff., 331;
conflict of customs in, 302 /.,
317 /.; the history of legislation
in, 109 ff.

350

Index

Franks, Salian, code of the, 92
Fraud, law regarding, 330
Frauds, the statute of, 257, 281
Frederick the Great begins a

code for Prussia, 301
French law in Louisiana, 304

Gaius preserves for us the legis

actio sacramenti, 50
Galton, F., on the payment for

murder among the Damaras,

43 /•

Gavelkind in Kent, 317
Gellius, A., on the unwritten law,

61
Germany, the administration of

justice among the early tribes

of, 53 /.; the codes of, 257; the

early tribes of, described, 26 ff.;

history of legislation in, 112 f.;

society among the early tribes

of, 39 ff-

Gesetzbuch, the, of Prussia, 301
Gibbon, E., on the judicial trial

by battle, 47; on the Koran,

283 ; on the revision of the Code

of Justinian, 300; on Roman

jurisprudence, 292 ff.
Government, the adoption of

organised, 170 /.; Bentham's

theory of the ethics of, 222 ff.;

the best form of, 340 ff.; the

function of, 253 /., 342 ff.
Great Charter, the, see Magna

Charta.
Green, J. R., on the Great Charter

of 1215, 100

Gregorian code, the, 294
Guinnard, A., on the payment for

murder among the Patagonians,

44

H

Hadley, J., on the Code of Jus-
tinian in later ages, 300; on the
Digest and the Code of Justin-
ian, 297

Hamilton, A., cited, 166

Hamilton, W., quotes Herodotus
on custom, 161; relates anec-
dote of Malebranche, 149

Happiness, " our being's end and
aim," 132

Henry I., the usages of, em-
bodied in the Constitutions of
Clarendon, 105

Hermogenian Code, the, 294

Herodotus on custom, 161

History, the study of, necessary
for the lawyer, 340

Hobbes, T., definition of law by,
7; theory of law by, 179 f.

Holland, T. E., collects definitions
of law, 4 ff.; definition of law
by, 8 f.

Homer cited for money payment
for crimes, 42

Hooker, R., definition of law by, 5

Horace on the value of the study
of Homer, 340

Hoveden, Roger, on Edward the
Confessor's digest of laws, 61 /,

India, codes in, 306 ff.
Inheritance, the English law of,

256
Institutes of Justinian, the, 288,

297
Insurance, the law of, case in,

70 /.; marine, law of, 271 ff.,

276 ff.
Interstate Commerce Law, the,

207

Irish laws, the ancient, 51
Italy, the history of legislation in,

Judges, the decisions of, 310 ff.;
the first, 31; the functions of,
7S.jP.

Judicial trial by battle, the origin
of, 47

Judicial tribunals, the establish-
ment of, 31 f., 38 /., 170 /.; the
history of, in England, 55
the improvement of, 327
the origin of, 48

Jurisconsults, the Roman, 291 /.

Jurisprudence, the science of
legal justice, 156

Jury, trial by, 64 f.

Jus, rights actually enforced by
law, 156; civile, the, 177; gen-
tium, the, 177 f.; the founda-

Index

tion of, lies in the law of Nature,
10

Justice, administration of, in early
democracies, 27 f.; among the
early Germans, 53 /.; in early
monarchies, 25; definition of,
155 ff.; the following of custom,
1 60 ff.; a relative virtue, 162 ff.

Justices, itinerant, appointment
of, 62 /.

Justinian, the Code of, 103, 286 ff.,
296 /.; the Digest of, 288 /., 297
ff., 306; the fate of the work of,
300 /.; the Institutes of, 288,
297; the Pandects of, 98, 103,
117, 288 /., 300 f.; the work of,

296 ff' K

Kant, I., definition of law by, 5,

King, the, in England in early
times, 56

King's, Bench, origin of the Court
of the, 63; Court, the, 58;
growth of the, 63; the in-
fluence of, in favour of uni-
formity, 316; peace, breach of,
regarded as a crime, 243

Koenigswarter, L. J., on pay-
ments for crime among ancient
peoples, 42, 45

Koran, the, a codification of
Mahometan law, 283

Land, the distribution of, among
the Anglo-Saxons in England,

Landrecht, the, of Prussia, 301
Langdell, C. C., on contracts, 330
Law, of the Alemanni, the, 96;
American, in Louisiana, 304;
the authority of, based on
Force, 12 /.; the authority of,
based on rule of absolute Right,
9 /.; beginnings of, 133 /.; body
of rules for regulation of con-
duct, 14 /.; the Canon, 101 ff.;
the civil, in Louisiana, 305;
common, the evolution of the,
329 ff.; common, resorted to,
in California, 307; in Louisiana,
304 /.; of contracts, the, 328
/.; of copyright, the, 334 /.;

I

the criminal, 241 ff., 297, 335;
is custom, 120; Danish, in
England, 61; the defects of
the, 322 f.; definitions of, 4
., 134; the enforcement of, 79
equity, the development
of the, 330 f.; of evidence,
the, 65; of fraud, the, 330;
French, in Louisiana, 304; the
function of, 131 /., 135, 343 f.;
improvement of the, demanded
by a highly developed industrial
life, 335 ff.; legislation an aid
to the improvement of the
333 ff->' °f inheritance, the,
256; of insurance, the, 70 /.,
271 ff., 276 ff.; Mahometan, the
Koran a codification of, 283;
the nature of, 129 ff.; of Nature,
the, 4 ff-, 9 /f-. 10 /., 121, 174,
176 /.; of negligence, 244 /.;
novel cases in, 191 ff.; the pa-
tent, 334; personal, of the
barbarians, the, 92, 95 /.; the
philosophy of, i ff.; positive,
defined, 6 ff.; private, 68, 297;
the abrogation of private, does
not occur after conquest of
country, 85 f.; private dis-
tinguished from public, 234 ff.,
263 /.; the influence of legis-
lation on private, small, 118,
254 ff.; of procedure, the, not
created by custom, 238 f.;
public, 263 /., 297; public,
formerly conterminous with
legislation, 115; the making of
public, by legislation, 171; the
function of public, 253 /.; of
the rights of married women,
the, 259; Roman, not abrogated
by barbarians, 91; Roman,
the sources and growth of,
289 ff.; rules for regulation of
conduct, 14 /.; of sale, the,
327 f,; the Salic, 93, 96; same
as custom, conduct, life, 320 /.;
the source and the authority
of, 4;/f./ Spanish, in Louisiana,
304 ; statutory, definitions of, 7 ;
the study of, i ff., 128 /./ter-
ritorial and personal, in Roman
Empire after its conquest by
barbarians, 92; the theory of,
103, 173 /., 179 /., 180 f., 187 ff.,
2 18 ff., 224 ff., 266 ff.; of trusts,

352

Index

Law, — continued.

the, 330; uncertainty in, 274 ff.,
280 ff ; the unwritten, pi,
231 /•, 331; the written, vic-
torious upon paper and power-
less elsewhere, 213 /.

Lawgivers, 49

Laws, of Alfred, the, 45, 6 1, 99; of
the barbarians, the, 45 /., 96; of
the Brehons, the, 52 /.; Edgar
begins digest of, 61; of Ed-
ward the Confessor, the, 61 /.;
of England, early, 60 /.; of the
Franks, the, 93 /.; Irish, the, an-
cient, 51; of the Mercians, the,
61; prohibitory, 205 /., 247 ff.;
of Solon, the, 32 ff., 42, 88, 261 ;
sumptuary, 247 ff.; of the
Visigoths, the, 93 /., 113 /.; of
the West Saxons, the, 61

Lee, G. C., on French legislation,
112; on German legislation,
113; on the Great Charter of
1215, 100

Legal education, 338 ff.

Legis Actio Sacramenti, 50

Legislation, an aid to improve-
ment of the law, 333 ff.; of any
American State described, 115
ff.; assists in making customs
of different communities of
same state uniform, 255 if.;
conflicts of, withf customs, 204
ff.; definition of, given by
Austin, 182; the development
of, 200 /.; earliest instances in
which writing was employed
for purposes of, 32 if.; its first
employment the making of
public law, 171; in former ages
conterminous with public law,
115; the function of, 202 ff., 253
/.; the influence of, upon private
law small, 118; the present
condition of, 3 /.; the province
of, 135, 221 ff., 233 ff.; in
regard to private law, 254 ff.;
source of rules for regulation of
conduct, 86 ff.; the uses of,
228 f., 233 ff.; the will of the
State, 229/7.

Libel, the difference between
slander and, 243

Liberty, the first condition of
happiness, 133 ff.; the supreme
object of legislation, 337

Life, itself the supreme desire,
132; the proper theme of the
lawyer's study, 338 if.; same
as law, custom, conduct, 320 /.

Limitations, the statute of, 20 <,

,2?2 f-
Livian enactments, the, 232

Louis XIV. issues ordonnances,
no /.

Louis XV. compiles ordonnances,
in f.

Louisiana, the code of, 304 /.

Lubbock, J., on customs of sav-
ages, 21

Lycurgus, no lawgiver, 49

M

Macaulay, T. B., on Bentham's
theory of jurisprudence, 219

Mac Chombaich, P., on the Code
of Justinian, 288

Magna Charta, 65, 98, 100

Mahometan law, the Koran a
codification of, 283

Maine, H. S., on Austin's theory
of law, 218 ff.; cited, 13; on
correspondence betweenDruids
and Brehons, 5 1 ; describes the
legis actio sacramenti, 50; on the
despotism of Runjeet Singh in
the Punjab, 196 ff.; on the
development of sovereignty,
199 /.; on the early Aryan com-
munities, 198 f.; on excom-
munication by the Druids, 52 /.;
on sovereignty, 193 ff., 315;
theory of the nature of law by,
187 ff.

Maitland, F. W., see Pollock, F.

Malebranche, M., on pursuit of
truth, 149

Marine insurance, law of, 271 ff.,
276 ff.

Massachusetts, controversies on
written and unwritten law in,
284

Mercians, laws of the, 61

Merton, the statute of (1236), 106

Mill, J., accepts Bentham's theory
of jurisprudence, 268

Mill, J. S., accepts Bentham's
theory of jurisprudence, 268

Milton, J., cited, 321

Monarchies, beginnings of, 23 /.

Index

353

Montesquieu, C. de S., description
of the laws of the Franks and of
the Visigoths by, 93 f .

"Moral, instinct," the, Sutherland
on the development of, 322;
sense in conscience, 152; senti-
ment, the development of the,
126

Morality, 137 ff.

Morgan, L. H., on payment for
murder among Iroquois, 43

Morison's dictionary referred to,

329

Moses no lawgiver, 49
Motives, guides of conduct, 146 f.
Murder, payments for, among

early tribes, 42 ff.
Must, the difference between the

words ought and, 164 ft.

N

Napoleon forms code for France,

3°* ft-
Napoleon, the Code, 257, 317 /.;

borrowed by code of Louisiana,

304; embodies ordonnances of

Louis XIV. and XV., 112
Negligence, denned, 76; law of,

244 f.
New York, the civil code of, 3i3/.;

controversies on written and

unwritten law in, 284
Niebuhr, B. G., on lawgivers in

ancient times, 49
Northern Securities decision, the,

213

Notes, promissory, 75 /.
Novel cases in law, 191 ff.
Novel Disseisin, Assize of, 63
Novels of Justinian, the, 103

Ordonnances of Louis XIV., no /.;
of Louis XV., in /.

Ostrogoths, code of the, 93 ; main-
tained, for a time, their own
customs in Italy, 113

Ought, the difference between the
words must and, 164 ff.; the
sense of, 153 ff.

Pandects of Justinian, the, 98,
103, 117, 288 /., 300 /.
23

Pascal, B., on justice, 160

Pastoral state, conduct in, 21 /.

Patent law, the, 334

Payments in early times in ex-
piation of crimes, 42 ff.

Peace the first necessary condi-
tion of society, 341

Peace, the King's, breach of, re-
garded as a crime, 243

Pentateuch, the, cited for com-
pounding crimes by money,

43

Personal law of the barbarians,
the, 92, 95 /.

Pindar calls custom the queen of
the world, 161

Plutarch relates anecdote of
Solon, 49

Poetry, the study of, useful to the
lawyer, 340

Pollock, F., unable to give defini-
tion of law, 9

Pollock, F., and Maitland, F. W.,
on the laws of the barbarians,
96; on Great Charter of 1215,
100

Pomeroy, J. N., censures codes,
313; on the code of California,
308 f.

Positive law defined, 6 ff.

Prcemunire, the statute of (1355),
107

Prcetor, the, an arbitrator in
disputes, 50; peregrinus, the,
177; the Roman, 2 90 /. ; urbanus,
the, 177

Praetorian jurisdiction, the, his-
tory of, 330

Precedent, is authenticated cus-
tom, 65 ; the decisions of judicial
tribunals, 170 /.; reasons for
judgments, 68 /.

Primitive society, the conditions
of, 1 6 ff.; conduct and its reg-
ulation in, 15 /.

Principle, decisions on, 72 ff.

Private law, 68; abrogation of,
does not occur after conquest
of country, 85 /.; changes in,
fall within province of public
law, 118; defined by Hadley,
297; distinguished from public
law, 234 ff., 263 /.; the influence
of legislation upon, small, 118;
in legislation, 117; legislation in
regard to, 254 if.

354

Index

Procedure, beginnings of, 30 f.;
the law of, not created by
custom, 238 f.

Procopius on Justinian's revision
of the code, 300

Prohibitory laws, 205 /., 247 ff.

Prussia, Austin on the code of,
304; codes in, 301 f.; conflict of
customs in, 301 f.

Public highways, customs regard-
ing the, 206 ff.

Public law, 68 ; denned by Hadley,
297; distinguished from private
law, 234 ff., 263 /.; formerly
conterminous with legislation,
115; the function of, 253 /.; the
making of, 171

R

Railroads, customs regarding and
legislation concerning, 206 ff.

Ranulphus on Edward the Con-
fessor's digest of laws, 61 f.

Rate-cutting on railroads, 207 f.

Ratification of law by the sov-
ereign, Austin's theory of , 183 /.

Reason in matter of conduct, 77

Rebates on railroads, 207 /.

Regrating, the practise of, 205

Religiosis, the statute de, 106

Reports of adjudged cases, Eng-
lish, Bentham on the, 267 f.

Revolution, the French, an im-
pulse toward uniformity, 317

Right, includes the just, 163; not
correlative to ought, 155

Roman Catholic Church, the, 101

rr

Roman, jurists, the, on definitions
in law, 306; law, not abrogated
by barbarian conquerors, 9 1 ; the
sources and growth of, 289 ff.

Rome, codification of law in, 286
ff.; early legislation in, 35 ff.

Romilly, S., accepts Bentham's
theory of jurisprudence, 268

Rules of conduct, the, 149 ff.

St. John, S., on the payment for
adultery among the Dyaks, 44
Sale, the law of, 327 /.
Salian Franks, code of the, 92
Salic law, the, 93, 96

Salvius Julianus composes a
perpetual edict, 298

Savigny, F. C. von, defines law,
134 /.; definition of law by, 5 f.;
on the expediency of codes,
315; on the unwritten law, .331

Science, definition of, 175

Self-help the first means of en-
forcing the laws of custom,
169 f.

Self -restraint, no restriction on
liberty, 133; peculiar to man,

147 #.

Sheriff, the functions of, 79

Sheriffs, etc., judges in early
courts, 57 f.

Sikhs, the, in the Punjab, 196 if.

Slander and libel, difference be-
tween, 243

Slavery, the abolition of, 214 if.

Smith, E. R., on the usages of the
Araucanians, 21

Society, the conditions of, in
early communities, 22 if.; a
picture of early, 39 ff.

Solon, the laws of, 32 ff., 42, 88,
261; no lawgiver, 49

Sophocles on the unwritten law,
231

Sovereign, the, delegates an
authority to command to the
judges, 183 ff.; the power of
the, 193 ff.

Sovereignty, Austin and Maine
on, 315; Austin's theory of,
refuted, 189 f.; the develop-
ment of, in modern times, 199
ff.; theory of, discussed by
Maine, 187 ff.

Spain, history of legislation in,

113 f-

Spanish law in Louisiana, 304

Spencer, H., on customs among
primitive tribes, 20 /.; on the
ultimate good, 132

State, the authority of the,
supreme, 179 /.; a public cor-
poration, 116

States, beginnings of, 24 f.

Statute of: Carlisle (1309), the,
107; Frauds, the, 257, 281;
Limitations, the, 205, 282 /.;
Mertpn (1236), the, 106; Pra-
munire (1355), the, 107; Quia
Emptores (1290), the, 107;
de Religiosis (1279), the, 106;

Index

355

Treasons (1352), the, 107; Uses,
the, 205, 260; Westminster
(1275), the, 106; the second
(1285), 107; Wills, the, 259 /.;
Winchester (1285), the, 107

Statutes, early, in England, 104 /.

Stubbs, W., describes the Consti-
tutions of Clarendon, 105 /.;
on the Great Charter of 1215,
100 /.; on the Statute de
Religiosis, 106

Sumptuary laws, 247 ff.

Sutherland, Alexander, on com-
pensation for injuries by pay-
ment, 43 /.; on the develop-
ment of the moral instinct, 322

Tacitus, on the administration of
justice among the early Ger-
mans, 53 /.; on customs of
German tribes, 28; on expiation
for crimes among Germans by
payment of cattle, 42 /.

Territorial law in Roman Em-

*--pire after its conquest, 92

Tertullian cited, 293

Theodosian Code, the, 93 /., 294

Thomson, A. S., on payment for
injuries among Maoris, 44

Tiian enactments, the, 232

Trade, contracts, conspiracies,
and combinations in restraint
of, 209 ff.

Treasons, the statute of (1352),
107

Trespass sometimes justified,
158 /•

Trial by jury, origin of, 64 /.

Tribonian abridges the digest of
Justinian, 289

Tribunals, judicial, the establish-
ment of, 170 /.; legal, improve-
ment of, in England, 62 ff.; of
present day, 66 ff.

"Trusts," the, 209 ff.

Trusts, law regarding, 330

Twelve Tables, the, 35 /., 42,^88,
261, 289 /., 292

Tyranny, 246 ff.; law which is an
encroachment upon just liberty,
135; sometimes necessary, 2 6 1 /.

Tyrants, 24 f.

U

Uncertainty in law, caused by
difference of opinions, 280 ff.;
caused by imperfection of lan-
guage, 280 ff.; caused by novel
features of transactions, 274 ff.;
guarded against by codifica-
tion, 274 ff.

Uniformity of rates in railroad
transportation, 206 ff.

Uses, the statute of, 205, 260

Utility, the principle of, 180

Visigoths, the attempt to maintain
their own law in Spain, 113 /.;
code of the, 93; reduction of
the national customs of, to
writing, 94

W

Wergild, the, 46, 93
Westminster, the statute of

(1275), 1 06; the second statute

of (1285), 107

West Saxons, laws of the, 61
Wills, the statute of, 259 /.
Winchester, the statute of (1285),

107
Women, married, law concerning

the rights of, 259
Writs, issue of, 64

X

Xenophon, definition of law by, 7
Y

Yost on definitions in the Louis-
iana code, 305

University of Toronto
Library

DO NOT

REMOVE

THE

CARD

FROM

THIS

POCKET